Incidental Questions Revisited

The Incidental Question Revisited: Theory and Practice in the Conflict of Laws
Author(s): A. E. Gotlieb
Source: The International and Comparative Law Quarterly , Oct., 1977, Vol. 26, No. 4,
Essays in Honour of John Humphrey Carlile Morris (Oct., 1977), pp. 734-798
Published by: Cambridge University Press on behalf of the British Institute of
International and Comparative Law
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THE INCIDENTAL QUESTION REVISITED-
THEORY AND PRACTICE IN THE CONFLICT OF LAWS
By
A. E. GOTLIEB *
I. INTRODUCTION
IN an article on the subject 21 years ago, I wrote that "In r

years a new problem in the conflict of laws has been discu
many writers, a problem in some ways related to renvoi and
terisation, and in other ways distinct from them, presentin
features of its own." It has been aptly called "the problem
'incidental question.' " 1 I went on to apologise for attempt
analyse in depth a subject so obscure that no case in the En
speaking world dealt specifically with it and so theoretical as to
the question whether it deserved to be discussed at all.2 Si
time, the writing on the subject has grown, slowly at first,
swiftly, into a large corpus of literature, appearing in a nu
languages-English, German, French, Italian, Dutch, Port
Danish, among others-and it continues to increase. The num
cases in English-speaking jurisdictions dealing with incident
tions has also grown substantially. It can no longer be said t
subject is an entirely theoretical one. Although courts, wit
exception,3 have invariably not dealt with the problem in a c
manner, in the sense of deciding "an incidental question," t
lems raised in the cases are real and serious ones affecting,
usually do, matters of deep personal concern, such as marit
* Under-Secretary of State for External Affairs of Canada; formerly Fel

ham College, Oxford; Visiting Fellow, All Souls College, Oxford.
1 A. E. Gotlieb, "The Incidental Question in Anglo-American Conflict
(1955) 33 Can. Bar. R. 523.
2 Ibid., p. 524.
3 It seems that the only case where the term " incidental question " has
is Travelers Insurance Co. v. Workmens Compensation Appeals Board, 434
(1967) which involved a claim to workmen's compensation in California f
dent that took place in Utah. The question of the validity of an agency a
arose incidentally in the context of determining the place where a contract
ment was made, it being considered essential for the contract to have bee
into in California if the latter's Workmen's Compensation statute was to be a
The Supreme Court of California stated expressly (at p. 996), that an "
question " was involved, quoting Von Mehren and Trautman, The Law of
Problems (1965), pp. 439-441, 493-495, as an authority on the subject. Ho
does not appear from the court's opinion that any conflict of laws was invol
ing to the existence of the agency agreement. The court seemed determined,
of policy, to apply California law and no examination was made of the la
other jurisdiction relating to the contract or agency.
734

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Ocr. 1977] The Incidental Question Revisited 735
and family relations. The mobility of individuals in contem

society and the progressive relaxation of marriage laws are ine
leading to increasingly complex legal disputes often involvin
single case, events in a number of foreign jurisdictions and
inconsistent legal consequences flowing from them.
But it is not only doctrine and case law that have grown in
years. So has the confusion surrounding the subject and per
is this that has grown fastest of all. The confusion extends
aspects of the problem, from the issue of its very existence
conflict of laws and its scope and definition, to the myriad of
ments and considerations that are thought to relate to its sol
Curiously enough, there even seems to be confusion about the
and "discovery" of the problem."
This article reviews developments through the past two decades
tries to find a path through the labyrinth of conceptual des
and pronouncements, lengthy analyses of cases, intricate ex
and learned dispute. No one should write on this subject wit
regretting the complexities which theory and practice seem to im
The present writer is no exception. If this article fails to reduce t
complexities, it will have failed in its purpose. Perhaps at the
4 See infra, section IV.

5 The first article of Wengler, usually cited as the principal pioneer in th
appeared in " Die Vorfrage im Kollisionsrecht " (1934) Rabels Zeitschrift 148
baum, Principles of Private International Law (1943), at p. 104, attributes d
of the incidental question to Melchior (Die Grundlagen des Deutschen Internatio
Privatrechts (1932) while Breslauer, who first introduced the subject into Engli
Private International Law of Succession, published in 1937, attributes it to the
Anzilotti (at p. 18, n. 1) (Nussbaum rejects this attribution: see op. cit. su
104). However, it is clear that academic discussion of the issue predates the 1
analysis of the problem of the incidental question was made in 1925 by
Questions de droit international des successions (1925) Iv Rec. des Cours I, pp
using the term " question prdjudicielle," and " question prialable." The antece
the problem go back at least another 50 years and appear in doctrinal dispute
Continent. For example, a Florentine jurist, Diena, writing in 1893, analysed
the possible applicable laws relating to the question of the legitimacy of a c
to a share in the estate of his father, an American who entered into a marri
an Italian national, the ceremony being performed in Italy by an American
Noting that under the lex successionis (" American law ") the child is legitim
that under Italian law he is not (the marriage being valid under the former
the latter legal regime) the author argues that when it comes to the questio
status of a claimant under a will, Italian law and not the law governing the suc
must determine the issue. The author cites several jurists in his favour inc
Savigny (Traitd de droit romain) while acknowledging that certain German
(Von Bar, Lehrbuch des Internationalen Privat und Strafrechts) favour the appl
of the lex successionis to questions relating to capacity to succeed. (See Dien
droits de succession d'un enfant nd d'un marriage c616brd en Italie devant u
des Etats-Unis " (1893) 20 Journal de D.I.P. et de la Jurisprudence Comparde 7
English writers in the nineteenth century do not, however, seem to have ad
themselves to the problem. An exception is Westlake who, in the second edition
of his Treatise on Private International Law and in all subsequent editions, de
the situation where a divorced person remarries during the life of the former
For his views, see infra, n. 177.

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736 International and Comparative Law Quarterly [VOL. 26
this investigation some clear and solid ground will appear upon which
a number of firm thoughts can rest.
II. WHAT IS AN INCIDENTAL QUESTION?

Leaving until later the matter of how some writers would answer this
question, one might agree, as a starting-point, that the conflict of
laws is that branch of law that provides procedures and guidelines to
assist a judge, in private litigation, to select a legal system, his own
or that of another country, which might appropriately be applied in
resolving a legal dispute arising out of a set of facts which has a
foreign element. In applying to the dispute the specific rule of
decision of another country, another issue may present itself which
also needs to be resolved. The main issue cannot then be settled
without finding a solution to the secondary or incidental one. Solving
the incidental question may, in turn, raise another incidental ques-
tion, sometimes called an incidental question of the second degree.
An issue-who is entitled to succeed to someone's estate-can be
regarded, in a specific situation, as the principal or main question
arising in the case. An incidental question that could arise would b
whether a widow or children who claim to share in the estate of the
deceased are his widow or legitimate issue. If determining whether
the widow is indeed the widow or the children are legitimate requires
an examination of the validity of a prior divorce of the deceased
person, the validity of the divorce would raise an incidental question
of the second degree.6
How would an actual conflict of laws arise in such a situation?
This is best illustrated by a hypothetical case involving the law of
succession, similar in some respects to a dispute before a Moroccan
tribunal more than 40 years ago.7
A Greek national dies without a will, domiciled in Greece and
leaving goods in England. The wife of the Greek national brings a
suit in England claiming to be entitled to a share of the property.
Under Greek law, a wife is entitled to share in her husband's estate.
6 The English case of Shaw v. Gould (1868) L.R. 3 H.L. 55, involved a situation
of this nature and can be regarded, on the basis of certain interpretations of the case,
as giving rise to an incidental question of the second degree. See Dicey and Morris,
The Conflict of Laws (9th ed., 1973), p. 36, n. 8; cf. Morris in Dicey, Conflict of Laws
(6th ed., 1949), at p. 75. See also Gotlieb, op. cit. supra, n. 1, pp. 535-537.
7 Loupetis v. Quemener, Tribunal of Rabat (first instance), Dec. 28, 1932; Clunet
992. The case is reproduced in Von Mehren and Trautman, op. cit. supra, n. 3, pp.
500-501. See also discussion in Gotlieb, op. cit. supra, n. 1, pp. 541-542. Writers on
the subject, both in English-speaking jurisdictions (see e.g. Wolff, Private International
Law (2nd ed., 1950), p. 206) and on the Continent (see e.g. Wengler, "Nouvelles
r6flexions sur les 'questions pr6alables'" (1966) 55 Rev.Crit.D.I.P. 165 tend to use
hypothetical succession and status problems as illustrative of incidental questions. See
below, section VI, for a discussion of the predominance of these subjects among
actual cases.

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The question arises in the proceedings whether the wife r

as she claimed to be, the wife of the Greek national. By t
English conflict of laws, the law of the forum, the wife
what she claimed to be. She married the deceased in Eng
civil ceremony. By English law, the marriage was valid b
English conflicts rule designates the law of the place of th
as the law determining the formal validity of the marria
Greek conflict of laws, the law of the deceased's domicile
dity of the marriage is determined by the law of the person'
lity. Since the claimant was Greek and since a priest was n
at the ceremony, as required by Greek law, her marriage
In this situation, the principal question is that of succes
English rule in the conflict of laws selects the law of th
person's domicile to determine who shares in the estate. B
the wife is entitled to share. The incidental question, th
question which arises incidentally in the course of the pr
was that of the marital status of the claimant to the estate. Was she
or was she not the wife of the deceased? By the law of the forum,
England, this issue is determined by the lex loci celebrationis which
upholds the status of the wife, while under the law governing the
main question-succession-the marriage is void because it does not
comply with the requirements of the law of the claimant's nationa-
lity. Thus there arises a conflict of the conflict rules of the two
countries relating to the incidental question. If the choice-of-law
rules of the lex causae, the law of the place governing the principal
question, are selected to determine the outcome of the incidental
issue, one result is reached; but if the conflicts rule of the forum is
selected to determine the applicable legal system to apply to the
incidental issue, the opposite result is reached. Should, then, a juris-
diction seized of such a case select, in order to answer the incidental
question, its own conflicts rules or those of the legal system it has
already selected to apply to the principal issue?
Three key requirements are usually cited-for example,s by Dr.
John Morris-as necessary, if a genuine incidental question is to
arise in the conflict of laws. These are all found in the hypothetical
case. The law applying to the principal question must be a foreign
law; a subsidiary issue must arise which is capable of arising in its
own right and for which choice-of-law rules are available; the
forum's choice-of-law rules must select a different system to settle
the subsidiary issue than would the choice-of-law rules of the
country chosen to apply to the main question.
8 See Dicey and Morris, op. cit. supra, n. 6, p. 35.

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It is an oversimplication to say that a "true" incidental question

can only arise if these criteria are met.9 There are at least seven
different ways in which " true " incidental questions can arise; all
these involve different approaches that could be taken by the lex
fori and the lex causae to (a) the doctrine of renvoi, (b) charac-
terisation of the incidental issue, (c) characterisation of the connect-
ing factor and, (d) the choice-of-law rule.'0 Nevertheless, it is
certainly true that a genuine incidental question will arise if Dicey's
three requirements are met.
It is worth drawing attention, however, to two further points
before proceeding into this inquiry. First, a single case may present
a number of incidental questions, sometimes true ones and some-
times not 11; and secondly, incidental questions which are not "true "
ones, i.e. which do not involve potential conflicts between the law
of two or more jurisdictions, are still incidental questions; as such,
they may well give rise to problems in the conflict of laws and, as
will be shown below, may be of considerable importance in under-
standing the conflicts problems in this area of law.
III. SUMMARY OF RECENT ATTITUDES TO THE PROBLEM
Notwithstanding the strong and widespread scholarly interest and

the increasing number of cases, some writers remained or remain
sceptical about the entire subject. One eminent writer, author of
perhaps the most comprehensive treatise on the conflict of laws in
any language, wrote in 1958 of the "dubious role" of the incidental
question 12 and thought it had "not matured sufficiently to warrant
9 See Gotlieb, loc. cit. supra, n. 1, pp. 527-528.

1o A 'problem can arise in resolving an incidental question in the following seven
situations:
1. When there is a conflict of the choice-of-law rules governing an incidental
question.
2. Where the choice-of-law rules on the incidental question are the same, but the
forum applies renvoi, the lex causae does not.
3. Where the choice-of-law rules are the same but the connecting factors are
characterised differently.
4. Where the choice-of-law rules of the forum and the transmitting state (a state
selected as the lex causae and applying renvoi) are the same but the trans-
mitting state applies, not its own choice-of-law rules, but the choice-of-law
rules of the selected domestic system, which differ from the forum.
5. Where the choice-of-law rules of the forum and the finally selected domestic
system are the same, but the transmitting state applies its own conflicts rule
to the incidental question.
6. Where the choice-of-law rules of the forum and the country governing the
main issue are the same but the characterisation of the incidental issue differs.
7. Where the choice-of-law rule of the forum and of the country governing the
main issue are the same, but the lex causae would apply its domestic law to
the incidental question.
For greater detail, see Gotlieb, op. cit. supra, n. 1, p. 528.
11 See Re Jones (1961) 25 D.L.R. 2d 595, discussed infra at nn. 232 and 243.
12 Rabel, The Conflict of Laws: A Comparative Study (2nd ed., 1958), Vol. 1, pp.
5-6.

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observations." 13 Writing a few years later, an American auth

while making a detailed analysis of the question, regarde
"another miscreant of a conceptualism gone rampant," " at b
a potentially useful tool "for the evasion of obsolete con
law." 15 And the subject is one that continues to attract com
such as: "[the incidental question] has agitated law professors
years, though judges have remained blissfully unaware o
existence." 16
Others, far from doubting the existence or relevance of the
lem, undertake a careful analysis of the matter in their writin
private international law, largely basing themselves on cases
have actually been dealt with in the courts. As two authors w
in New Zealand have put it: "no one's knowledge of the su
can be said to be complete unless he has mastered this topic.
has now become standard practice for the subject to be inclu
textbooks in many countries 18 as well as in casebooks in En
speaking jurisdictions 19 and in courses of lectures on the conf
laws offered on the Continent.20 There are now many articles
literature on the conflict of laws that are devoted largely or
sively to the incidental question.21 There are authors who se
13 Ibid.
14 Ehrenzweig, A Treatise on the Conflict of Laws (1962), at p. 340.
13 Ibid.
16 Nygh, Conflict of Laws in Australia (2nd ed., 1971), at p. 276. The author goes
on to say, however, that the problem " does exist."
17 Webb and Davis, Casebook on the Conflict of Laws of New Zealand (1970), at
p. 85.
Is See, for example, Dicey and Morris, op. cit. supra, n. 6, pp. 34-38 (England);
Castel, Conflict of Laws (2nd ed., 1968), pp. 166-168 (Canada); Nygh, op. cit. supra,
n. 16, pp. 276-278 (Australia); Webb and Davis, op. cit. supra, n. 17, pp. 84-88
(N.Z.); Anton, Private International Law (1967), pp. 67-72 (Scotland); Eek, The
Swedish Conflict of Laws (1965), pp. 178-183 (Sweden): Rigaux, La thdorie des
qualifications en droit international privd (1965), pp. 444-467 (France).
19 e.g. Castel, op. cit. supra, n. 18, pp. 166-168 (Canada); Morris, Cases on Private
International Law (4th ed., 1968), pp. 3-6 (England); Webb and Davis, op. cit. supra,
n. 18, pp. 84-88 (N.Z.); Von Mehren and Trautman, op. cit. supra, n. 3, pp. 493-508
(U.S.A.).
20 See, e.g. Maury, " R~gles gtndrales des conflits de lois " (1936) III Rec. des Cours
325, 554-563; Wengler, "The General Principles of Private International Law "
(1961) III Rec. des Cours 273, 398-416; Maridakis, " Introduction au dro t inter-
national priv6 " (1962) I Rec. des Cours, 375 at pp. 437-47; Kegel, " The Crisis of
Conflict of Laws " (1964) T Rec. des Cours 93 at pp. 230-232; de Nova, " Historical
and Comparative Introduction to Conflict of Laws " (1966) II Rec. des Cours 435 at
pp. 557-569.
21 See articles by Wengler, "Die Vorfrage im Kollisionsrecht" (1934) 8 Rabels
Zeitschrift 148; Robertson, "The Preliminary Question in the Conflict of Laws "
(1939) 55 L.Q.R. 565; Cormack, "Renvoi, Characterisation, Localisation and Pre-
liminary Question in the Conflict of Laws " (1941) 14 So.Cal.Rev. 221; Serick, "Die
Sonderanknupfung von Teilfragen im Internationales Privatrecht" (1953) 18 Rabels
Zeitschrift 633; Gotlieb, op. cit. supra n. 1; Louis-Lucas, " Qualification et r6parti-
tion" (1957) 46 R.C.D.I.P. 153; Francescakis, "Les questions pr6alables de statut
personnel dans le droit de la nationalit6," 23 Rabels Zeitschrift, 466; Lagarde, "La
ragle de conflit applicable aux questions pr6alables " (1960) 49 R.C.D.I.P. 459; Van
Hoogstraten, "Le droit international priv6 nderlandais et la question prialable," De

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determination of incidental questions, broadly understood, as a

fundamental part of the judicial process in private international
law,22 while still others regard the nature of incidental issues in con-
flicts cases as being sometimes more fundamental than those of the
principal questions themselves."2
Still other writers, while seeing the subject as important, even of
considerable significance, cannot suppress deeply ambivalent feel-
ings about it. A Dutch jurist perceives the incidental question as
touching on the very function of the conflict of laws, its philosophical
basis and sphere of application,24 but speaks darkly of the need to
avoid a" systematisation exagdrde" and" constructions artificielles"
that can make the law remote from everyday life.25
An Italian authority, writing in 1966, believes the incidental ques-
tion has "finally [become] a mandatory subject for conflicts students
everywhere." 26 Having its origins "deep in the recesses of conflicts
of laws," which it took German thoroughness to discover,"27 the
problem has, judging from the increase of literary output regarding
it, proved its troublesomeness.28 However, "[i]t is hard going all
the way and very confusing." 29 The author of this warning, Pro-
fessor de Nova, adds, "I may be pardoned for being still somewhat
hazy on the rights and wrongs of the matter." "0
IV. SOME CAUSES OF CONFUSION AND MISUNDERSTANDING
Professor de Nova may, indeed, be forgiven, and this for several

reasons.
(1) The Abstract Quality of the Writing

Even the most courageous of investigators will find
analysis tough going, not least (and not only) that of
subjects inventeurs, Wilhelm Wengler,31 among whos
works on the subject, in the opinion of the editor of a le
journal, "aucun spdecialiste du droit international pr
passer d'avoir lu" 32 Professor Wengler's most recent
Conflictu Legum (1962), p. 209; Bouchaert, "La question prcalab

national priv6 " [1964] Rev.Jr.du Congo 245; Wengler, op. cit. sup
" Bigamy in the Conflict of Laws" (1967) 16 I.C.L.Q. 680; T. S. Sc
liminary Question and the Question of Substitution in Conflict of
Scandinavian Studies in Law 91. For references to other articles in
as in Italian, Portuguese and Spanish, see Kegel, Internationales Pri
1971), pp. 133-134.
22 Von Mehren & Trautman, op. cit. supra, n. 3 at pp. 493-494.
23 See, for example, Louis-Lucas, op. cit. supra, n. 21.
24 Van Hoogstraten, ibid., p. 209. 25 Ibid., p. 224.
26 De Nova, op. cit. supra, n. 20, at p. 557. 27 Ibid., p. 558.
28 Ibid. 29 Ibid., p. 561.
o30 Ibid.
31 See introductory editorial note to Wengler's "Nouvelles r6flexions sur les ' ques-
tions pr6alables '," loc. cit. supra, n. 7. 32 Ibid.

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bution to the subject, Nouvelles rdflexions sur les questions

ables, written in 1966, 32 years after he first took up the su
consists of 50 pages of analysis (his original contribution ran t
100) by far the largest number being devoted to an extremely
plex series of hypothetical cases involving many foreign poi
contact. Such hypothetical cases, which almost every writer o
subject invents and uses freely, are difficult to understand, bu
even more difficult to retain them long enough in one's min
reach the author's conclusions.
(2) Differing Descriptions and Terminological Confusion

There is considerable confusion, and it seems to be growing, under-
lying the terminology referring to the subject itself. Some English
writers, but not all, prefer the term "incidental question," 3 while
others in English-speaking jurisdictions and on the Continent use a
variety of terms such as "partial question ","4 " subsequent ques-
tion," ~ "dependent question" or solution,3 "subsidiary ques-
tion," " "threshold question," " "prejudicial question," 3 "le
concept prdjudicial," 40 and "question incidente." 41 On the Con-
tinent, the most commonly employed term is, however, the "pre-
liminary question" (" question prialable," "vorfage ").4* The last
term seems most popular because of the view that the solution of
the question is, in some manner, anterior in time to a consideration
of other issues in the case. Yet it is indisputable that no problem
relating to the incidental question can arise until after the legal
system applying to the main question has been selected by the court
of the forum and a particular substantive rule chosen which is appli-
cable to that issue. The incidental question "ne se pose done que par
la question principale et pour la question principale "."3
Although this seems clear enough, the phrase "preliminary ques-
tion" continues to be used on the Continent in preference to " inci-
."3 , Preliminary Question" is used, for example, by Robertson, op. cit. supra, n.
12; Nussbaum, op. cit. supra, n. 5 (who, however, does not like the term); Lipstein,
" Conflict of Laws, 1921-1971: The Way Ahead " [1972B] Camb.L.J. 67, 90-96.
34 Serich, "Di Sonderankniipfung von Teilfragen im Internationales Privatrecht"
(1953) 18 Rabels Zeitschrift 633, 642.
35 Kegel, Internationales Privatrecht (1960) pp. 106-168, 167.
36 See Ehrenzweig, Private International Law: A Comparative Treatise, vol. I
(General Part) (1967) pp. 169-170.
37 Graveson, Conflict of Laws (7th ed., 1974), p. 77.
38 Webb and Brown, A Casebook on the Conflict of Laws (1960), p. 74.
s39 Eak, op. cit. supra, n. 18, pp. 178-183.
40 Maury, op. cit. supra, n. 20, p. 554 et seq.
41 See Note (1955) 44 D.I.P.R.C. 323.
42 See, for example, Wengler, "Nouvelles rbflexions sur les 'questions pr~alables':
Die Vorfrage im Kollisionrecht " [1934] Rabels Zeitschrift p. 148.
43 Lagarde, op. cit. supra, n. 21, at p. 461: cited with approval in Anton, op. cit.
supra, n. 18, p. 70; see also Nussbaum, op. cit. supra, n. 5, p. 105.

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dental question" and, in fact, arguments have been advanced there

which would make the latter phrase inappropriate. The Dutch jurist,
van Hoogstraten, has maintained that
in pure logic, the preliminary question governs the principal one 44; [and]
in my opinion, the preliminary question is in the social context always
more important than the principal one, particularly when legal matters
are involved which have a permanent character and are capable of being
the source or basis of other personal rights. The existence of these inci-
dents determine and will continue to determine the conduct of people to
whom they attach,.5
According to the analysis of a French author,"6 a preliminary ques-
tion can become the principal question when the situation that is
the object of the preliminary issue is the source and not merely the
condition of the situation giving rise to the main issue. Thus, situa-
tions may be perceived where the preliminary issue "absorbs" the
main one. This perception of the relative importance of the principal
and incidental issue is not unrelated, as will be seen later, to attitudes
towards whether the lex fori or lex causae should apply to deal with
incidental issues. Writers who favour the application of the law of
the forum to incidental issues tend to find that there are important
policy reasons for preferring the local law."' It is not, therefore, sur-
prising that proponents of the lex fori or "lex foristes" as they are
sometimes called,"8 should tend to see the "incidental question" as
being of principal importance.49
The terminological confusion that arises from this type of analysis
is not eased by similar references to the "interdependence" of
issues and their categorisation as "autonomous," on the one hand,
and "dependent" or "subordinate," on the other.50 It sometimes
happens that in applying a domestic law to a principal issue, a court
will ignore its own conflicts rule in considering the incidental issue,
because it believes that the purposes of the statute will best be served
by applying the domestic law to it as well. An example that is some-
times cited--by, among others, the American author, Currie 51--is
where a court, applying and interpreting a Workmen's Compensa-
tion Act in force in its own jurisdiction, ignores the conflict of laws
rule of the forum relating to the validity of marriages and upholds
the position of the claimant because of her personal affiliation to the
deceased worker. In this type of situation, one may speak of the
44 Op. cit. supra, n. 21, p. 214 (my translation).

45 Ibid. (my translation).
46 Louis-Lucas, op. cit. supra, n. 21, pp. 166 et seq.
47 See Graveson, op. cit. supra, n. 37.
48 Van Hoogstraten, op. cit. supra, n. 21.
49 See discussion in Section V, pp. 34 et seq.
5so See Lagarde, op. cit. supra, n. 21, p. 460.
51 Selected Essays on Conflict of Laws (1963), pp. 70-71.

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OCT. 1977] The Incidental Question Revisited 743
main issue (entitlement to benefits) absorbing the incidental one
(status of the claimant) and, by analogy, perceive issues as being
potentially dependent or independent in the context of a specific
problem of private international law. But using this or similar termi-
nology, as some scholars do,52 does not seem helpful and the question
of what such terms actually mean in a given case, let alone what
results, if any, they may help to produce, is likely to receive an
obscure answer, to say the least.
Certain authors also refer to the necessity of distinguishing situa-
tions where, on the one hand, true incidental questions or genuinely
interdependent ones may arise (whatever issues may properly be so
categorised) from situations where, on the other hand, more than
one issue arises independently in the case, each problem attracting,
so to speak, its own conflicts-of-law rules. For example, a legal dis-
pute may give rise to two separate issues: the formal validity of a
marriage and the essential validity of the marriage. Or a contract
may be broken down by a judge into issues of capacity, form and
substance. Such issues are sometimes referred to as partial elements
of a principal question.53 It is indeed possible that one issue may not
be dependent on the other or others, so that both or all have a sort
of equal importance. In this instance, a court undertakes a process
of what is sometimes called depeCage 5, or dividing up the issues in
such a way that no incidental question would arise. It would be
equally possible for a court. if it wished, to allow the law governing
one issue to absorb another, thus creating, so to speak, a dependent,
or more properly, an incidental issue. The whole process of charac-
terisation of the issues, including the depegage element, is very far
from automatic. While a court may, in a specific context, make a
distinction between the formation of a contract and its performance,
thus possibly submitting these questions to two different legal systems
with a view to putting together an overall solution, it might on some
later occasion, or another judge might, take a different approach
and regard the issue in contract as properly the concern of only one
particular jurisdiction, perhaps that which has most points of con-
nection with the contract, and thus apply that law to all issues of the
case. The foreign court might, in such a case, regard one of the ques-
tions in the case as an incidental one and apply another law to it.
Should that occur, the forum, if it adhered to the concept of renvoi
(e.g. if the contract involved a promise to convey land) might find
that it had, much to its chagrin, an incidental question back on its
hands.
s. See
53 Lagarde,
Lagarde, op.pp.
ibid., cit.459-460.
supra, n. 21.
54 Cheshire, Private International Law (9th ed., 1974), p. 57.

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(3) Conflicting Areas of Application

Terminological confusion is increased and understanding of the
subject somewhat impaired by the introduction by American
writers of new terms which widen considerably the subject as
generally understood.
A leading casebook, dealing with the law of multistate problems,
by Von Mehren and Trautman, contains a large portion given over
to the subject of "Supplementation by Reference-The Incidental
Question-Choice of Law with respect to Subsidiary Rules needed
to Supplement an Applicable Dispositive Rule or Principle." 55 The
analysis of the authors starts from the point that no legal category
contains rules or principles capable of resolving all aspects of every
factual situation. Rules of inheritance require supplementation by
rules of family law, and problems may arise when policies under-
lying the subsidiary rule are different from those underlying the
dispositive rule.
Where it is necessary to resolve a matter that falls outside the
rules dealing with the disposition of the main issue of the case, the
court will normally engage in the process of supplementation by
reference-by referring to rules dealing with other subjects. It does
this for reasons of simplicity and economy in the administration
of justice and to avoid the over-subtleties that could result when
words such as "wife" or "children" have one meaning in one
branch of the law and another meaning in a different branch. The
selection of the "dispositive rule," might, however, avoid any sup-
plementation by reference. For example, the authors state, the law of
inheritance and workman's compensation law could each provide all
the rules and criteria needed to determine whether a person's claim
would be recognised.56 Viewed from this standpoint, the term
"wife" might then have a special meaning in the dispositive rule of
the lex causae.
It appears from this analysis that the authors understand that sup-
plementation by reference is a process that can occur in cases which
are entirely domestic, or where the lex causae is the law of the
forum, or where the lex causae is a foreign jurisdiction. The scope
of their analysis is therefore far wider than that relating to " true "
incidental questions which, as was pointed out earlier, are generally
55 Op. cit. supra, n. 3, at p. 439. A Canadian author, Hartley, op. cit. supra, n. 21,
at pp. 680 et seq., uses the terms " wide reference" and " narrow reference " approach
in dealing with selection of choice-of-law rules concerning an incidental question.
These terms are meant to describe not the process by which legal systems are selected
by the court, but the actual choice of the specific system, the narrow reference
approach leading to application of the lex fori and wide reference leading to selection
of the lex causae governing the main question.
56 Op. cit. supra, n. 3. p. 440.

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regarded as those arising where the lex causae is not the la

forum. Accordingly, the various cases selected by the aut
well as their discussion, seem to be directed not primarily
strating possible conflict of laws applicable to an incidental
but to helping to understand the basic processes by which
select, or decide not to select, foreign rules to deal with a
of the case before them. The analysis tends to show that c
select foreign laws, rather than simply apply domestic rul
it seems just and expeditious for them to do so.
(4) The Incidental Question as a Matter of Interpretatio

The analysis by Von Mehren and Trautman of the inciden
tion involves an extension of the concept to cover cases w
domestic law provides the rule of decision on the main issu
other hand, the treatment of the concept by another leadin
can author, Brainerd Currie,"7 and some of his disciples,58
involve its contraction, perhaps to the point of non-existen
than dealing with an incidental issue arising under a dom
by supplementing it by a reference to a foreign law, Curri
court seeking the answer to an incidental issue as being a m
construction of the domestic law. He engages in an analys
incidental question to show that the courts do not always
foreign law for the purposes of selecting among potentially
ing rules of decision. Incidental questions usually touch upo
of status and these do not arise in the abstract; except in de
judgments: "the determination of status is almost never t
mate object of an action." " An analysis of the situatio
incidental questions arise show that "it is often perfectly c
the law of the forum supplies the rule of decision." The aut
discusses hypothetical facts, derived from a U.S. case,6o in
claim by a woman, allegedly the wife of a deceased worker
compensation under a New York workmen's compensat
the marriage being invalid in the country where it was ce
(Italy) as well as in New York. An interest analysis of the
the forum would, it is suggested, lead to an appreciation of
underlying the forum's statute that the surviving spouse w
entitled to compensation whether or not she was the wif
deceased. In other words, the domestic law of the forum is
preted so as to apply to the incidental issue and provide a
57 See op. cit. supra, n. 51, Chap. I, "On the Displacement of the La
Forum," pp. 69-73.
58 See Cramton, Currie and Kay, Conflict of Laws (2nd ed., 1975), p
59 Currie, op. cit. supra, n. 51, p. 69.
60so Masocco v. Schaaf, 234 App.Div. 181, 254 N.Y. Supp. 439 (1931).

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decision with regard to it. Thus, for Currie, the incidental question
illustrates the non-applicability of the conflict of laws to a case
governed by a domestic rule of decision, but with foreign elements.
It would accordingly seem necessary to conclude that for Currie the
incidental question is not a concept that forms part of private inter-
national law."' Currie, unlike Von Mehren and Trautman, accord-
ingly does not engage in discussions of any of the reasons why a
court might wish to apply foreign law to an incidental issue and
thereby utilise a choice-of-law rule-including such factors as pro-
moting the harmonisation of decisions on the same subject in
different jurisdictions or creating consistency of decisions within
the forum or simplifying the administration of justice.
Currie's disciples pose the problem of the incidental question in a
similar manner. They ask whether interest analysis can be used to
resolve incidental questions where foreign law or rules might be
involved but not as "rules of decision." 62 Illustrations of the inci-
dental question are provided by two cases where the status of a
"wife" arose incidentally, the marriage in each instance being
celebrated outside the forum and in contradiction to its rules.63 The
point of the analysis is, once again, to show that the conflict of laws
question relating to the validity of a marriage may have nothing to
do with the determination of whether a "wife" or "widow" can
enjoy certain benefits or rights she may be claiming. The "inciden-
tal question" is thus regarded as illustrating the process of statutory
construction in cases when a foreign element is involved and as
reflecting the importance of undertaking a policy analysis of the
factors underlying the statute, presenting, as they may, independent
and novel problems in statutory construction.
Currie and his colleagues are accordingly not concerned about the
settlement of incidental questions that arise when, for whatever
reason, courts decide to apply foreign law to the main issue. This
sets their approach to the subject apart from most other writers,
although, as will be seen later, their analysis has implications for
determining what law should be applied to find an answer to a
genuine incidental question. What is less clear from the writings of
the Currie school is whether their analysis of the incidental question
is intended to illustrate only the importance of proper statutory con-
struction in cases involving foreign elements or whether it is meant,
in some manner, to strike at the very concept of applying choice-of-
law rules where incidental questions arise. If the former is the intent,
e6 See discussion in Kegel, op. cit. supra, n. 20, pp. 204-205.

62 Cramton, Currie and Kay, op. cit. supra, n. 58, p. 392.
63 Op. cit. supra, n. 51, pp. 393-395.

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Currie's contribution succeeds in its purpose; if the latter

intent, it fails.
(5) The Introduction of New Terms or Concepts

Increasing reference is made by writers on the incidental qu
to the term datum, first used in this context, it would seem
Brainerd Currie."4 The phrase has since been employed by ot
American writers '65 as well by writers in other common law
dictions 66 and the notion appears to have equivalents on the
tinent.67 By datum, Currie seemed to mean some rule, or fa
other matter, existing or occurring in a foreign jurisdiction,
was relevant to case in which a forum was applying a domesti
of law. Where the event would not ordinarily, or would not in
ticular instance, attract a choice-of-law rule, it could then, acc
to Currie, be called a datum.
Thus, a judge, when applying a domestic law relating to succ
may have to deal with an incidental issue, arising abroad, rel
to status. The court, looking to the policy underlying the suc
statute, may conclude that the succession statute is really app
to the status question as well and that there is therefore no n
examine the nature of the status of the claimant under the f
law involved. Yet the foreign law is still not irrelevant. T
Currie's example again, the claimant under a New York Work
Compensation Act may succeed, even though her marriage is
valid under either the law of Italy (where she married or of
York (where she lived); she is entitled to succeed because the
pose of the statute is to provide for support of persons with
special affiliation to the deceased. Yet it might still be neces
under the New York law, to establish good faith and depende
and in this connection, the Italian marriage is looked to, as a d
but not as a juridical act whose validity need be determined
private international law.68
Thus, the test for Currie is whether the foreign fact is relevant
the application of the domestic rule of decision in the case. If
it is a datum.
Currie's followers 9 again speak of judges looking to foreig
not for the rule of decision, "but to provide a datum for use
64 Ibid., p. 69.
65 Cramton, Currie and Kay, op. cit. supra, n. 58, p. 392: Ehrenzweig, Private
International Law: A Comparative Treatise, General Part (1967), pp. 83-84 and
169-170.
66 Lipstein, op. cit. supra, n. 33, at p. 65.
67 Wengler, Nouvelles riflexions, p. 214, n. 1.
68 Currie, op. cit. supra, n. 51, pp. 69-72.
69 Cramton, Currie and Kay, op. cit. supra, n. 58.

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determining what the rule of decision should be." 70 The concept is,
however, further refined by a disciple in an article whose title "Con-
flict of Laws: Foreign Law as Datum" seeks clearly to relate the
datum concept to private international law "71-a relationship which
seems doubtful. The author analyses what he calls the "datum-
rule of decision dichotomy," but seems to go beyond the earlier
writings by saying that it is only when the domestic rule of decision
turns on a point of foreign law or a foreign fact that the "foreign
law supplies a datum." 72 The basic issue in such a case is "whether
or not the foreign law will be permitted to decide the collateral issue
by furnishing a datum point." 73 The answer to this question depends,
of course, entirely on the construction of the domestic rule.
Situations of this type occur, says the author, in States with reci-
procal inheritance laws, which provide that a person can inherit
land in the forum only if his or her domicile allows domiciliaries of
the forum the same privilege. In this type of case, the State places
on the foreign law "the burden of providing the datum point." 74
It has been claimed by Currie enthusiasts-for example, Ehrenz-
weig 5--that with the tools of "datum language" and "policy
analysis," and applying properly the domestic rules of decision, the
old problems of the incidental question tend to resolve themselves.
But it is difficult to see in what way the term datum has any particu-
lar significance in the conflict of laws. Since a datum appears to be
a fact or rule that is relevant in applying a domestic law, it seems to
have no real interest for private international law except, perhaps, to
flag the fact that conflicts-of-law rules are not involved in the case.
Thus, if a court decides not to apply a choice-of-law rule and yet
to respect a foreign rule or fact whose existence is essential to the
decision, then we may say, after the event, that the court has applied
or used a datum. However, confusion is bound to ensue not only
because, as was noted, the authors concerned do not use the term in
precisely the same manner, but because deciding when a datum is a
datum can overlap with or replace the process of applying a choice-
of-law rule and vice versa. Using Currie's example of the New York
Workmen's Compensation Act, if a claimant can, as a matter of
proper construction of that Act, succeed in the case only if she
entered into a valid marriage in Italy, is then the point at issue a
datum or an unvarnished example of the usual conflicts-of-law pro-
cess? Similarly, when a case turns on the question whether it would
or would not be legal to perform a contract in a foreign jurisdiction,
is the foreign rule a datum or a matter for the application of con-
70 Op. cit. supra, n. 51, p. 392. 71 Kay, 53 Cal.L.R. 47 (1965).

72 Ibid., at p. 60. 73 Ibid., at p. 61.
74 Ibid., p. 62. 5 See, op. cit. supra, n. 14, pp. 169-170.

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flicts rules? 76 If it is a datum, the rule may be applied or it may

depending on how one reads the domestic statute. If the cour
lows a different route and decides that there is a question to
foreign rules should be applied, the forum may or may not r
the particular rule in question, depending on what is the prop
that it applies and what is the public policy of the forum. Thu
from clarifying the issues in a case with foreign elements, the da
language may only confuse them. On the whole, it would seem
to forget about the word except, perhaps, if one wishes, for r
that are not clear, to use a generic term to refer to a foreig
that a court took into consideration in applying a domestic r
decision.
(6) Other Factors Contributing to Lack of Clarity

There are other factors that help to cause uncertainty and lack of
understanding in this area, but it would not be particularly fruitful
to add to the already long list except to mention the renvoi doctrine
and its relationship to the incidental question. Virtually every autho-
rity on private international law has discussed renvoi and a number
have dealt with its relationship to the incidental question. As a
general observation, few of these discussions are illuminating, either
because they fail to take account of the impact of renvoi on the
process of choosing a law to govern the incidental question, or
because they link the two concepts in a way that disturbs the reason-
ing underlying the processes applicable to one or the other. Most
scholars see the subjects as logically distinct, although recognising
that each deals with the basic issue whether a choice-of-law rule of
a foreign legal system should be applied."77 Certain authors seem to
believe that if the renvoi doctrine is not applied in dealing with the
main question, there is little room for applying foreign choice-of-
law rules to an incidental question."7 Others take the opposite view
and seem to oppose applying renvoi to the main question, but see its
relevance to the application of a special regime governing incidental
questions.79 Still others advocate the application of the conflicts rules
of the lex causae to the incidental question only when renvoi applies
to the main question.80 And there are those who discern a certain
affinity between renvoi and the method of selecting the law of the
incidental question but believe that adherence to the renvoi doctrine
76 See Lipstein, op. cit. supra, n. 33, at p. 95.

" Anton, op. cit. supra, n. 18.
78 Van Hoogstraten, op. cit. supra, n. 21, p. 219; Anton, ibid.
79 Robertson, Characterisation in the Conflict of Laws (1940), pp. 135 et seq.;
Wolff, op. cit. supra, n. 7, pp. 208-209. See discussion in Gotlieb, op. cit. supra, n. 1,
pp. 532-534.
80so Cormack, op. cit. supra, n. 21, at pp. 243 et seq.

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need not weigh too heavily on the decision as to what law should
apply to the incidental question.81
The difficulties encountered in understanding the relationship
between renvoi and the incidental question arise from the failure to
distinguish between three distinctly different aspects of the relation-
ship. These are, relationship in time, relationship in concept and
relationship in application.
(a) Relationship in time

When a judge examines a legal dispute with foreign elements, he
may decide to apply a foreign law, for example, the law of the place
where land is situated. After characterising the nature of the prob-
lem as one relating to land, he might also decide to apply the entire
law of that foreign State if he believes that the raison d'itre of his
choice of the legal system of that country-effective control over the
destiny of the land-leads him to apply the renvoi theory and, in
particular, to model his decision after what he believes the foreign
court would do if seized with the problem. Thus, if the foreign
court would, for some reason, apply the law of a third country to the
transaction (e.g. the law dealing with the capacity of children to
enter into agreements), then the court of the forum, applying renvoi,
would do the same. Thus the process involves the selection of the
proper law of the main question and, in particular, its possible
replacement by another law. It is only after the proper law of the
main question has been determined by the judge that a substantive
domestic law of rule of decision is examined which in turn might
give rise to an incidental question. Only then does the judge become
involved in making a choice of a legal system to apply to the
subsidiary issue.
(b) Relation in concept

When a court decides to apply the renvoi doctrine in certain types
of cases, it does so for reasons of legal policy. These might be to
harmonise the way in which it, the forum, decides a case and the
foreign jurisdiction concerned would do so, so as to avoid incon-
sistency and shopping for places to sue, as well as to help ensure the
effectiveness of the forum's decisions. If, then, legal policy motivates
a court to pattern its rule of decision in a particular case after that
of a foreign court, this renvoi rationale might well, in similar types
of cases, motivate a court to apply conflicts rules of that same
foreign state to the incidental question. As the incidental question
s8 De Nova, op. cit. supra, n. 21, at pp. 564-566.

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arises only in applying the rule of that foreign system, the re

policy that lead to the selection of that rule would lead eq
the selection of the rule of the same legal system to appl
incidental question. Obviously, however, it is not the doct
renvoi that leads to choosing the foreign rule to apply to the i
tal question, but those reasons of legal policy that led the
apply renvoi to the main issue in the case.
(c) Relationship in application

Where a court does not apply renvoi, then the reasons o
that underly the renvoi doctrine are not necessarily appli
choosing the law to be applied to the incidental question. T
may be influenced by certain similar considerations (e.g. th
national harmony of decisions) but it may be influenced b
factors and thus come to the conclusion that the reasons for select-
ing a foreign law to apply to the main question are not at all applic-
able to the incidental question. As will be seen later, many
authorities do, as a rule, prefer the lex fori as the law governing
incidental questions.
However, if the forum applies renvoi, the forum will then, as has
been shown, apply the conflicts law of the main question to the
incidental question as well. Then, certain important distinctions
must be drawn. First, if the court of the foreign State, applying its
own conflicts rules, would "transmit" the case to a third State (i.e.
would pattern its rule of decision after that of yet another State)
then the law that the forum would apply to the incidental question
would be the domestic law of the third State; it would not apply the
domestic law of the lex causae. Secondly, if, however, the court of
the State whose law governs the main issue would, by applying its
conflicts rules, retain the incidental question (i.e. apply to it its own
domestic law) then the forum will apply the domestic law of the lex
causae to the incidental question. Finally, if the court of the State
whose laws govern the main issue would remit the incidental question
in decision to the forum, then the forum would apply its own
domestic law to the incidental question.
V. ANALYSES OF WRITERS
The large number of authors who have addressed themselv

problem of the incidental question is usually divided into t
gories: those favouring the application of the law of th
(lex fori) and those favouring the application of the law g
the principal questions (lex causae). A few learned auth

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styled them "lex foristes" and " lex causards." s2 In the battle
between these groups, there are to be found, among their ranks, a
large number of formidable jurists using formidable intellectual
weapons in defence of their preferred views. This division of the
warriors is, however, a rather superficial one because many espouse
arguments, by way of justifying exceptions, that support their
opponents' views, and so many writers on each side perceive so many
exceptions to their general position that, without too great difficulty,
one might regard them as belonging to the opposite camp to the one
with which they are allied or others have allied them. Moreover,
one would certainly have to include, in order to be accurate, a third
group, those who refrain from expressing overall general principles
but believe that certain types or categories of cases justify certain
types of approaches and one could more readily place some of the
proponents in the first two groups into the third category. Indeed,
one writer can, without too great difficulty, be regarded as belonging
to all three camps.83 There are even those in the third category of
writer who believe that although it is possible to apply certain prin-
ciples to certain types of cases, there probably are, in the final
analysis, no specific rules or principles that can be cited as applicable,
each case being likely to attract a solution that is peculiar or unique
to that case alone, or, at least, to highly similar circumstances.
The ranks of the various groups are drawn from jurists both on
the Continent and in English-speaking jurisdictions. It is extremely
doubtful, however, if one can discern the outlines of a national
school or approach. It has been surmised by an Italian writer, Pro-
fessor de Nova, that it was the German theoretical flair that led to
the identification of the problem and that it actually came to the fore
when-
after the first World War, conflicts scholarship in continental Euro
particularly in Germany, stressed the analysis of individual positive sy
of private international law, and the old universalist inspirations su
in the guise of a steady search for ways of harmonising the indepe
results of the national systems of choice-of-law rules and thus secu
modicum of uniformity.84
While detecting this "continental" flavour about the incid
question and the desire to prefer solutions that were in intern
harmony with each other-thus indicating, it would seem, a
dency to favour the lex causae, the writer then goes on to
caution:
How much the shared ideal of Gesetzesharmonie was to condition
scholarly opinion on the special problem of the Vorfrage was essentially
82 Van Hoogstraten, de Nova, Ehrenzweig.

s83 Ehrenzweig.
84 Op. cit. supra, n. 21. at p. 561.

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a matter of personal inclination of the individual commentator, rather

than the result of the fact that he approached the problem within the
framework of reference of a given legal system.85
But another writer on the Continent, Lagarde, discussing the
causards argument that an international harmony of decisions is
achieved by applying the law governing the main question, maintains
that-
cette idde siduit les esprits anglo-saxons, toujours soucieux de statuer dans
le mime sens que les tribunaux de l'Etat dont ils appliquent la loi
matirielle.86
While it is certainly possible to engage in speculation about

national legal tendencies and preferences with respect to the inci-
dental question, and there is admittedly a lot of material to work
with, the results are liable to be as contradictory as the observations
above and, it is submitted, of very little value.
Listed below are some of the principal holders or proponents of
the three main views. The list is not exhaustive, but it includes the
main contributors, and having in mind the classification problem
discussed earlier in this section, is somewhat arbitrary at times.
(1) Writers tending or appearing to favour, as a general rule and
subject to exceptions, the application of the lex fori:
Among authors in common law jurisdictions: Cheshire (earlier
editions),87 Cormack,8s Crampton, Currie & Kay, s9 Brainerd Currie,9o
Dicey and Morris (earlier edition),91 Falconbridge,92 Graveson,93
Hartley,"4 Nussbaum (semble) 95;
Among authors on the Continent: De Nova (semble),96 Diena,"97
Graulich,98 Lewald,99 Louis-Lucas,100 Kegel,lox Maury,102 Raape,103
Rigaux,104 Van Hoogstraten.1o5
(2) Writers tending or appearing to favour, as a general rule and
subject to exceptions, the application of the lex causae:
s5 Ibid. 8 Op. cit. supra, n. 21, at p. 467, n. 3.

87 See Private International Law (3rd ed., 1947), at p. 129 (4t
and (5th ed., 1957), at pp. 86-87, where the author asserts tha
apply the law of the forum. 8s Op. cit. supra, n. 21, pp. 243 et seq.
89 Op. cit. supra, n. 58, pp. 393-398. 90 Op. cit. supra, n. 51, pp. 69-72.
91 Conflict of Laws (6th ed., 1949), p. 73. 92 Conflict of Laws (1947), pp. 165 et seq.
93 Op. cit. supra, n. 37, p. 79.
94 Op. cit. supra, n. 21, pp. 680-691
95 Op. cit. supra, n. 5, pp. 104 et seq. See comments in Gotlieb, op. cit. supra, n. 1,
p. 529.
98 Op. cit. supra, n. 20, pp. 557-569.
97 Op. cit. supra, n. 5, pp. 781-793.
9s Principes de droit international privd (1961).
99 Op. cit. supra, n. 5, p. 75, pp. 166-173.
1oo Op. cit. supra, n. 21, pp. 183 et seq.
olo Op. cit. supra, n. 21, p. 232; also Internationale Privatrecht (2nd ed., 1964),
pp. 116-117.
102 Op. cit. supra, n. 20, pp. 558-563.
103 " Les Rapports juridiques entrent parents et enfants " (1934) 10 Rec. des Cours
485-495.
104 Op. cit. supra, n. 18, at p. 450.
o105 Op. cit. supra, n. 21, pp. 209 et seq.

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Among authors in common law jurisdictions: Anton,1o6 Castel,1or

Lipstein,108 Mann,1o9, Robertson,11o Welsch,111 Westlake (semble),112
Wolff.113
Among authors on the Continent and in Scandinavia: Eek,114
Lagarde,115 Marikadis,116 Melchior,117 Schmidt,1's Wengler.119
(3) Writers believing that no general rule is applicable:
Among authors in English-speaking jurisdictions: Breslaer,'20 Cheshire
(later editions),121 Dicey and Morris (later editions),122 Ehrenzweig
(semble),123 Gotlieb,124 Nygh,125 Von Mehren and Trautman,126 WTebb
and Brown.127
Among authors on the Continent: Lewald (later writing),128 Wengler 129
(later views).
The basic debate between the lex foristes and the lex causards,
particularly on the Continent, has been characterised, since it got
underway half a century ago, as a conflict between two basic con-
106os Op. cit. supra, n. 18, pp. 67-72. 107 Op. cit. supra, n. 19, pp. 166-168.
o108 Op. cit. supra, n. 33, pp. 90-91.
109 " Legitimation and Adoption in Private International Law" (1941) 57 L.Q.R.
112 at p. 128, n. 72.
11o Op. cit. supra, n. 79, pp. 135-156, and see discussion in Gotlieb op. cit. supra,
n. 1, pp. 522-532.
111 " Legitimacy in the Conflict of Laws " (1947) 63 L.Q.R. 65 at pp. 86-87.
112 Op. cit. supra, n. 5. The author states (at p. 83) that " [w]hen it is the man
who has been divorced and remarries, and at the date of his marriage his personal
law is that of a country in which, as well as in the locus actus of the remarriage, the
whole series of transactions is held to be valid, it would seem to be an excess of
refinement to make any objection on the ground that at the date of the divorce his
personal law was that of a country in which the jurisdiction that granted the divorce
would not be deemed internationally competent." He adds (at p. 84) that this would
not be true in the case of the wife because she could not, under English law, acquire
a subsequent separate domicile. 113 Op. cit. supra, n. 7, pp. 206 et seq.
114 Op. cit. supra, n. 18, pp. 178-183. 115 Op. cit. supra, n. 21, pp. 459 et seq.
116 " Introduction du droit international priv6" (1962) I Rec. des Cours 375 at pp.
437-447.
117 Die Grundlagen des Deutschen Internationalen Privatrechts (1932) pp. 245-265.
118s Op. cit. supra, n. 21, pp. 108 et seq.
119 " Die Vorfrage im Kollisionsrecht " (1934) Rabels Zeitschrift 148.
120 Op. cit. supra, n. 5, pp. 18-21. However, on p. 134, he seems to assume the
lex fori must apply. 121 (8th ed., 1970), pp. 74-75; (9th ed., 1974), pp. 56-57.
122 Op. cit. supra, n. 6 (7th ed., 1958), pp. 62-63; (8th ed., 1967), p. 39; (9th ed.,
1973), pp. 37-38.
123 Op. cit. supra, n. 65, pp. 169-170. The author has a strong preference for apply-
ing the law of the forum and believes that renvoi, characterisation and the incidental
question are devices judges use to apply the law of the forum. In questions of tort
and succession, however, he seems to favour applying the " dependent " solution, i.e.
the lex causae. Ehrenzweig seems to reach this conclusion by regarding the question
of the applicable law as a matter of interpretation by the judge of the forum. The
technique of interpreting the rules of decision of the forum or of a relevant foreign
country leads to a rejection of any logical or general rule and allows the judge, in
any particular case, to give priority to the principle of conformity with its own legal
system (" materielle harmonie ") or to the principle of international uniformity of
decision on the particular issue. See Kegel, op. cit. supra, n. 20, at pp. 230-232.
124 Op. cit. supra, n. 1, at pp. 542-555. 125 Op. cit. supra, n. 16, at p. 278.
126 Op. cit. supra, n. 3, at pp. 493-494.
127 A Casebook on the Conflict of Laws (1960), pp. 74-82 (semble).
128 , Ragles g6ndrales des conflits de lois " (1939) mII Rec. des Cours, 64, n. 4.
129 "The General Principles of Private International Law" (1961) III Rec. des
Cours 275 at pp. 398 et seq.; "Nouvelles r6flexions sur les questions pr6alables"
(1966) 55 R.C.D.I.P. 165.

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cepts, that of the internal harmony of rules or decisions and the
international harmony of decisions. Those that argue that priority
should be given to l'harmonie matirielle des solutions, or l'harmonie
du droit civil interne, that is to say, "substantive uniformity of result
within the forum," are, of course, the lex foristes. The lex causards,
on the other hand, would give priority to the principle of l'har-
monie matirielle des solutions; or to "international uniformity of
result "among the courts of different jurisdictions.'30
Proponents of the law of the forum are fundamentally concerned
about inconsistencies among decisions in the internal law of the
forum. They argue, for example, that "marriage" should always
be judged the same way in the same State.'8' It makes no sense,
they argue, to apply one set of rules to govern the validity of a mar-
riage when the question arises as a principal question, but to apply
a different set of rules when the same issue arises as an incidental
issue.132 As a distinguished German author put it: "The rules regu-
lating the validity of a marriage must be the same rules inter vivos
and mortis causae."" It is also argued that the law of the forum
must be applied in order to maintain the 'internal coherence of
legal evaluation '." '" Thus, if the judge of the forum characterises
a problem in a particular way or, as a matter of domestic policy,
selects a rule to apply to an issue, it makes no sense, it is argued, to
displace that rule by a foreign rule, or to reject the valuation of the
forum for that of another State. Thus, advocates of applying the law
of the forum are not usually attracted to the principle of renvoi; its
rejection as well as the rejection of the idea of applying foreign
choice-of-law rules to the incidental question, go hand in hand.135
Yet another line of argument put forward by advocates of this
approach is that, because of the very nature of incidental questions,
involving, as they do, matters of intimate concern to the forum, such
as marriage, divorce and other questions of status, the so-called
incidental issue tends to outweigh, in its policy implications, the
so-called principal question. The incidental question absorbs, so to
speak, the principal on:
. . en pure logique, c'est la QP [question prialable] qui rigit la question
principale. . . . A nos yeax la question prdalable est toujours dans l'op-
30 See, e.g. Wengler, " General Principles of Private International Law " (1961) In
Rec. des Cours 273 at pp. 399-400; Kegel, "The Crisis of the Conflict of Laws"
(1964) ii Rec. des Cours 93 at p. 232. 131 Kegel, ibid.
132 Graulich, op. cit. supra, n. 98, at pp. 169-173. The learned author, citing
Balladore Pallieri, Dirritto Internazionale privato, no. 13, p. 49, says, at p. 173, " la
manikre dont une
titre prnalable) question
doit prialable
6tre sans se prdsente
incidence; devant
ou ne voit le raison
pas la juge (t pour
titrelaquelle
principal ou
sembl
able circonstance purement judiciaire devrait influencer le riglement substantiel d
problime." 133 Raape, op. cit. supra, n. 103, p. 493
134 See de Nova, op. cit. supra, n. 20, p. 561.
135 See, in particular, van Hoogstraten, op. cit. supra, n. 21.

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tique sociale plus important que la question principale notamment lor-

squ'il s'agit des rapports de droit a caractdre permanent capable d'itre la
source ou le fondement d'autres droits rdels personnels.136
This results, it is suggested, in the requirement that the national
law of the forum apply to the so-called incidental question. Failure
to apply the national law, whether the conflicts or domestic law
rule, would amount to ignoring the policy of the forum and sub-
jecting the status of nationals and other residents to the vagaries that
would result from the application of whatever law happened to apply,
in a particular case, to the principal question.'"37 Thus, the basic
thrust of the argument of the lex foristes is that the policy of the
forum is paramount. The forum must therefore look to its own
rules, not to that of another State. In the view of an English author:
Each question is an independent legal problem requiring an independent
application of private international law, which in this context should
normally be English.'88
This solution, it is argued, combines consistency and relative sim-
plicity '9 and should be applied whether or not the doctrine of renvoi
applies to the principal question.
Only by treating the principal and each subsidiary question separately
and applying to those initially, independently and throughout, the rules
of English private international law, will it be possible to achieve workable
and practical consistency which must not only be internal in respect of
the particular problem before the court, but general in relation to the
whole body of rules of English private international law.140
The argument of the paramountcy of the law of the forum reaches
its fullest expression in the theories of Currie who was doubtful of the
value of applying even the conflicts rules of the national State con-
cerned. What must be looked to in every case with foreign aspects,
according to Currie, is the interest of the forum State and the
policies underlying the domestic rule of decision. It is quite probable
that a solution can be found in the proper interpretation of the
domestic rule of decision itself, as it applies to the principal question.
At all times, the court must search out the underlying policy con-
siderations and give precedence to the interests of the State as
expressed in the policies that are reflected in the rule of decision
that applies to the main issue.'4' In the opinion of another American
writer, influenced by Currie, the concept of the incidental question,
like that of renvoi, classification and the "public policy" of the
forum, are just devices which courts use to bring back home the
case before them and apply the rules of the forum.142
136 Ibid. p. 214.

137 See also Louis-Lucas, op. cit. supra, n. 21.
138s Graveson, op. cit. supra, n. 37, at p. 79. 1 9 Ibid.
140 Graveson, op. cit. supra, n. 4, pp. 79-80.141 Currie, op. cit. supra, n. 51.
142 Ehrenzweig, op. cit. supra, n. 65, pp. 169-70.

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Proponents of the law governing the main question take the oppo-
site view on most of these matters. If one gives priority to the prin-
ciple of "substantive uniformity of results" in the forum, one
contributes to a disharmony or conflict of international decisions. To
adopt an approach which allows the substantive results to differ
depending on where the action is brought is to encourage forum
shopping and the adoption of courts of convenience.143 The argu-
ment of the lex foristes that their approach avoids internal disson-
ance within the forum 144 is met by showing that internal dissonance
can result from the application of the forum's own conflicts rules as
distinguished from the application of its domestic rules and that, in
addition, English and American laws often distinguish between the
existence of a status and its incidents."45
The lex causards argue that the problem that a court faces is not
whether a person is legitimate in the abstract but whether he is
legitimate for purposes of the right to succeed to certain property
situated in a foreign country. They point to the fact that it is well
established in English law that a polygamous marriage may be
recognised by the courts of a State for certain purposes (e.g. in
respect of the legitimacy of the children) but ignored for others (e.g.
allowing a wife to sue for nullity, or divorce, or to found an indict-
ment for bigamy).14'" All this derives from the fundamental fact that,
in the view of the advocates of this approach, " La question prealable
ne se pose done que par la question principale et pour la question
principale." 147
The incidental question arises only because of the principal ques-
tion; it springs exclusively from the application of a rule of decision
of the foreign state. This led Melchior long ago to ally the concept
of applying the foreign conflicts rule to the incidental question with
the concept of renvoi.'48 If the judge of the forum applies the local
conflicts rule rather than the one the foreign court would apply, he
would decide differently from a judge sitting in that foreign court.'49
Thus, writers have stressed that the lex causae must be looked to
because "this is the only way of respecting the determination already
made that the selected proper law is to govern the question in
dispute." 150 The proper law of the foreign country concerned should
143 See the views of Sachs L.J. in R. v. Brentwood Superintendent Registrar of

Marriages [1968] 2 Q.B. 956 at pp. 971-972. "44 See Wolff, op. cit. supra, n. 7.
145 Robertson, op. cit. supra, n. 79, pp. 142-145. 146 See infra, at p. 762.
147 Lagarde, op. cit. supra, n. 21, at p. 461.
14a Op. cit. supra, n. 117, pp. 246 et seq. And see discussion in Maury, op. cit.
supra, n. 20, at pp. 559-560. 149 Ibid.
150 Robertson, op. cit. supra, n. 79, at p. 1
Wolff advocate applying the domestic law of
flicts rules, although they see the latter as applicable to the incidental issue. See
Gotlieb, op. cit. supra, n. 1, at p. 533.

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be applied, it is argued, because, in essence it is the jurisdiction that

is most closely connected with the case.'5' The incidental question
really arises out of the interpretation to be given to the substantive
rule of decision of the foreign State whose law governs the main
issue. It is the policy of that State, therefore, and not of the forum
which is a matter of concern.'52 The internal logic of the foreign
law, its integrity and not that of the law of the forum, is at stake.'53
It is further argued by the lex causards that if, instead of adhering
to the internal logic of the foreign law, one applies the rule of the
forum to the incidental issue, the effect will be an undesirable mix-
ture of laws involving unexpected results.1"4 Because the law that
is applicable to the main question is the law of a foreign State and
because the incidental question arises only as part of that principal
issue and is subordinate to it, the juridical order of the forum stands
"at some distance" from the incidental issue involved; it is separa-
ted from it by the "screen " of the principal question and has no
direct relationship with it.155 Accordingly, "the conflict evaluations
of the lex fori are fading at a considerable distance." 15' While a sub-
sidiary competence must be allowed to the forum when there is
some juridical connection with it (i.e. a prior marriage or divorce
decree that was given in the forum) it is only in such exceptional
cases that the rule of the forum must be allowed to insert itself into
the legal order of the foreign State and take precedence over the
foreign rules.157s
The third group of writers, one that seems to be growing and to
have acquired some converts from other groups, draws arguments
from both sides to support the view that there are no overall general
rules that are applicable to the incidental question. These writers per-
ceive that underlying the two opposing viewpoints there are norma-
tive principles which seem almost entirely incapable of realisation.
They agree with the emphasis the first group places on the policy of
the forum and of interpreting what is meant to be achieved by the
rules of that jurisdiction, but consider that, because of the extreme
difficulty of this task and the fact that the approach must, as a
matter of common sense, be applied, but with even greater diffi-
culty, to the rules of decision of the lex causae, the "policy" or
"interest" of the forum is a very slender foundation on which to
151 Anton, op. cit. supra, n. 18, at p. 68.

152 Lagarde, op. cit. supra, n. 21. at p. 466.
153 Ibid.
154 Anton, op. cit. supra, n. 18, at p. 71.
155 Lagarde, op. cit. supra, n. 21, at pp. 468-470.
's Eek, op. cit. supra, n. 18, at p. 181.
157 Lagarde, op. cit. supra, n. 21, at pp. 479 et seq.; Wolff, op. cit. supra, n. 7, at
pp. 209-210.

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construct a general theory or approach. The third group also

merit in the thinking of the lex causards believing that it a
with tendencies in common-law jurisdictions to apply renvot i
cession and status cases and to distinguish between status an
effects,'58 but considers that there is an unjustifiable tende
extend a valid approach in certain cases to an overall rule
advocates of the no-general-rule approach point to the fact th
lex foristes are able to show that in many instances harmony
be achieved among the decisions or potential decisions of the
of the forum and the courts of one or more foreign States.
example, the forum might well apply the conflicts rules
domicile, say Ontario, as the law governing the main issue, sa
cession, but this will not necessarily produce harmony wi
distribution of goods in another forum, say Italy, if the testa
goods there and was an Italian national. Moreover, it seems c
that some courts, at least, will not ignore the validity of the
marriages or divorce decrees when they are raised incidenta
a case, thus making general harmony impossible. The lex cau
are equally able to show that the pursuit of internal harmon
something of a will of the wisp, as courts do not seem at all both
by recognising the validity of a marriage in one context and
another, or by regarding children as legitimate for some pu
but not for others.'59 Indeed, one English court seemed quit
pared to deny its own divorce decree, so to speak, when its v
arose as an incidental question in a nullity case.1'60 Proponents
"no-general-rule" approach are also struck by the fact th
advocates of a general rule seem to get bogged down in a sw
of exceptions and qualifications so that, as often as not, there
little left of the so-called general rule. They also conclude fro
argument of the two sides that a conceptual approach simply
be carried very far towards a coherent whole and that the co
tend to be created in order to support mechanical solutions o
cally necessary ones which, on analysis, seem neither automat
logical. And they are influenced by the courts' behaviour in
judges, when dealing with incidental issues, almost never re
them as such, seem unconscious of any general or theoretica
siderations and reach decisions on the incidental issues without
regard whatsoever for any principles that are allegedly applicable
to the problem, in an abstract sense.1' The no-rule advocates are
aware of the fact that in many instances the arguments of the lex
1s See Dicey and Morris (9th ed., 1973), at pp. 37-38.

1~'9 See infra, at p. 761.
16so Breen v. Breen [1964] P. 144 at p. 152, per Karminski J.
16~1 See infra.

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foristes and the lex causards are not really joined or are beside the
point because in some situations the conflicts rules of neither juris-
diction will be applied; rather, a domestic rule of the forum or of
the foreign State will be interpreted as applicable not only to the
main issue but also the incidental one.162 Finally, they are struck
by the fact that while proponents of both views tend to be conscious
of the importance of policy considerations in selecting the proper
law of the incidental question and the need often to interpret the
purposes and policies of the relevant domestic or foreign rules, they
tend to be less conscious of the need to take account of the individual
character of the cases, their unique mixture of foreign facts and
laws and the considerations of equity that are likely to weigh heavily
in an area where such matters as marriage, divorce, legitimacy and
adoption are almost always present and the individuals concerned
are, as often as not, caught in a web of conflicting national rules.
Thus, advocates of the no-general-rule approach see room in difficult
cases where international harmony cannot be achieved for "une
activitt crdatrice du juge," 163 a role that would have him look at the
relevant points of contact and at all potentially applicable laws, so
that solutions may be found, at least for the future of parties, that
are fair and reasonable.'4 Indeed, one author (the author of this
article) has gone so far as to conclude that "[t]here is really no
problem of 'the incidental question,' but as many problems as there
are cases in which incidental questions may arise." 165
162 See e.g. Doe ex. dem. Birtwhistle v. Vardhill (1840) C1. & Fin. 895 (claimant
legitimate by foreign law cannot succeed as heir to English land); In the Goods of
Duchess D'Orleans (1859) Sw. & Tr. 253 (grant of administration denied in England
on grounds of infancy under English law, although majority was reached under the
law of the domicile).
163 Wengler [1952] R.C.D.I.P. 595-596.
164 Wengler, Nouvelles rdflexions, pp. 190 et seq. and 214-215. While often
being regarded as one of the principal architects of the concept that the incidental
question should be governed by the lex causae, Wengler, in his later writings in the
1960s (op. cit. supra, nn. 7 and 20), seems to have moved to the conclusion that no
general rules are applicable. Since he is the most prolific writer on the subject as well,
perhaps, as the most inclined to conceptualise, it is not easy to summarise his views,
but in essence they seem to be the following: first, that for reasons of coherency and
consistency, the laws, domestic or conflicts, of one legal system should apply to a
case; secondly, that this system should not normally be that of the forum because
each forum could decide issues in a different way; thirdly, that it may be impossible
to select only the rules of a single system, foreign or domestic, to apply to a case
because the rules in each regime form part of a coherent system of rules that may
overlap and "want to be applied "; fourthly, that a court may therefore need to
"adapt" rules from different systems that are simultaneously applicable, the result
being, fifthly, that priority cannot always be given either to securing a minimum of
conflicting decisions between a forum and foreign States or securing consistency on
connected questions in a single forum. " It cannot be said that one principle should
always be preferred to the other. Only a balancing of all relevant considerations in
individual cases can lead to an equitable solution ": op. cit. supra, n. 20, at p. 416.
165 Gotlieb, op. cit. supra, n. 1, at p. 555.

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VI. A SURVEY OF JUDICIAL PRACTICE
(1) Categories of Incidental Questions

Cases involving incidental questions may be divided into two
categories.
The first consists of cases where incidental questions in the wide
sense of the term are involved. These are disputes which, as we have
noted, American writers have dealt with when they have analysed
the incidental question. They involve situations where in the applica-
tion of a rule of decision of the domestic law of the forum, the lex
causae, a question arises incidentally which needs to be answered.
The second category consists of cases where a foreign law is
applied to the principal question and in the application of the law
of decision of the foreign jurisdiction an incidental question arises
which needs to be answered.
This is the sense in which English, Commonwealth and Continental
scholars usually use the term.
(2) Types of Subjects Involved

If both categories of cases are taken into account, incidental ques-
tions have arisen in a very large number of reported decisions. It
would be futile to try to count the number of cases. Looking simply
to those referred to in textbooks or other similar sources, a total of
well over a hundred have been cited which contain incidental ques-
tions. It seems likely that the total number of cases in common law
jurisdictions is in the thousands.
Incidental issues arise in four broad types of cases, a large pro-
portion of which involve a question of legitimacy arising inciden-
tally in a succession case.
(a) First type: legitimacy/succession

As noted above, this is, par excellence, 'the classic "incidental
question "-type issue and presents itself in a number of different
situations.
(i) Legitimation by subsequent marriage: of a claimant on an
intestacy,166 to a gift of moveables under a will,17"' to a devise of
English land,168 as an heir to English land,'"69 or titles,170 in the
application of a tax law.11
166 Re Goodman's Trusts (1881) 17 Ch.D. 266.

167 Re Andros (1883) 24 Ch.D. 637.
168s Re Grey's Trust [1892] 3 Ch. 88.
169 Doe ex dem. Birtwhistle v. Vardill (1840) 7 C1. & Fin. 895.
170 Sinha Peerage Claim 11946] All E.R. 348.
171 Skottowe v. Young (1870) L.R. 11 Eq. 474.

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(ii) Legitimation by recognition: of a claimant under a settlement

trust,172 in the application of a tax statute.17
(iii) "Legitimation" by adoption: in connection with an appli-
cation for letters of administration,174" of a claimant on an in-
testacy,'"75 under a trust fund,176 to a devise of land.177
(iv) Original legitimacy: of a claimant under a will to land or
movables,17" to a bequest.179
(b) Second type: marriage/divorce

A second type of case, perhaps the most common after succession/
legitimacy, relates to marriage and divorce. Incidental issues arise
in different types of situations, for example:
(i) validity of a divorce: in the context of a claim to legitimacy
in a succession case 18o (second degree incidental question), of
a petition for nullity of marriage,8' of proceedings to allow a
marriage to take place,182 of the question of performance of a
maintenance order 18;
(ii) validity of a marriage: (but not involving a prior marriage)
in the context of a legitimacy claim in succession case,'184 validity
of a marriage in the context of a petition for divorce,15 of an
application concerning the administration of an estate,186" of
succession of property,18" of prosecution for bigamy,'88 of an
action for care and protection under the Children and Young
Persons Act 1963,189 of an action to recover dower,190 of an action
for maintenance under the National Assistance Act.1'*
172 Luck's Settlement Trusts [1940] Ch. 864.

17a Atkinson v. Anderson (1882) 21 Ch.D. 100.
174 Re Wilby [1956] P. 174.
175 Re Wilson [1954] Ch. 733.
176 Re Valentine's Settlement [1965] Ch. 831.
177 Brown v. Findley, 157 Ala. 424 (1908).
178 Shaw v. Gould (1868) L.R. 3 H.L. 55.
179 Re Bischofsheim [1948] Ch. 79.
180o Shaw v. Gould, supra, n. 178; Re Stirling [1908] 2 Ch. 344; Vergnani v.
Guidotti, 308 Mass. 450 (1940).
181 Ingham v. Sachs (1887) 56 L.T. 920; Breen v. Breen [1964] P. 144; Schwebel
v. Ungar (1963) 42 D.L.R. (2d) 622; (1964) 48 D.L.R. (2d) 644.
182 R. V. Brentwood Superintendent Registrar of Marriages, ex parte Arias [1968]
2 Q.B. 956.
183 Wood v. Wood [1957] P. 254.
184 Vergnani v. Guidotti, 308 Mass. 450 (1940); Re Hall, 61 App.Div. 266, 70 N.Y.
Supp. 406 (1901).
185 Hashmi v. Hashmi [1972] Fam. 36; [1971] 3 All E.R. 1253.
186s Coleman v. Shang [1961] A.C. 481.
s187 Baindail v. Baindail [1946] P. 122.
188ss R. v. Sarwan Singh [1962] 3 All E.R. 612; Bamgbose v. Daniel [1955] A.C.
107.
189 Mohammed v. Knott [1969] 1 Q.B. 1.
190o Shahnaz v. Rizwan [1965] 1 Q.B. 390.
191 Iman Din v. National Assistance Board [1967] 2 Q.B. 213.

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OcT. 1977] The Incidental Question Revisited 763
(c) Third type: family/tort, contract
A third category relates to family-law questions that arise in
tort and contract cases. Some examples are:
(i) status of the wife: (validity of marriage) in proceedings
against her husband in an accident case,192 under a Workmen's
Compensation Aot,193 in an employer's liability suit,4 in a claim
under a Fatal Accidents Act.195
(ii) status of a child: in proceedings against father in a negligence
case,196" in respect of imputation of liability to a parent in a
negligence case.19r
(iii) Survival of a claim: in proceedings by an estate in a tort
case.198
(iv) Validity of a wife's surety contract: in a mortgage arrange-
ment entered into by the husband.1?
(d) Fourth type: property, contract/tort, contract

Finally, incidental questions relating to contract or the per-
formance of a contract that may attract foreign laws can arise in
both tort and contract actions: for example, the question of owner-
ship of a vehicle in a negligence case,200 the question of the validity
of an agency agreement in a contract case and the place of making
of contract in a workmen's compensation case,201 the question of
an illegal preference (performance) in a contract case,202 the
validity of a contract of agency in the context of proceedings to
require registration of shares,203 the nature of a surety's guarantee
in respect of the principal's obligation on a bill of exchange,204 the
validity of a foreign statute affecting performance in a mortgage
case,205 a question of the validity of payment in a foreign currency
in respect of the dividends of an English company,206 and a variety
192 Gray v. Gray, 87 N.G. 82, 174 A. 508 (1934). Dawson v. Dawson, 224 Ala. 13,
138 So. 414 (1931).
193 Masocco v. Schaaf, 234 App.Div. 181; 254 N.Y. Supp. 439 (1931).
194 Meisenhelder v. Chicago & N.W. Ry., 170 Minn. 317, 213 N.W. 32 (1927).
195 Re Degaramo's Estate, 33 N.Y.S. (1895).
196 Emery v. Emery, 45 Cal. 2d 421; 289 P. 2d 218 (1955).
197 Traglio v. Harris, 104 F. 2d 439 (1939).
198s Grant v. McAuliffe, 41 Cal. 2d 859, 264 P. 2d 944 (1953); Nelson v. Eckert,
231 Ark. 348; 329 S.W. 2d 420 (1959).
199 Proctor v. Frost, 89 N.H. 304, 197 Atl. 813 (1938).
200 Williams v. Rawlings Truck Line, Inc., 357 F. 2d 581 (1965).
o201 Travelers Insurance Co. v. Workmen's Compensation Appeals Board, 434 P.
2d 992 (1967).
202 Re Circle Trading Corp. (1926).
203 Chatenay v. Brazilian Submarine Telegraph Co. [1891] Q.B. 79.
204 Rouquette v. Overmann (1875) L.R. 10 Q.B. 525.
205 Mount Albert Borough Council v. Australasian Temperance and General
Mutual Life Assurance Society [1938] A.C. 224.
206 Adelaide Electric Supply Co. Ltd. v. Prudential Assurance Co. [1934] A.C. 122.

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of other matters affeoting the modalities of performance in a

contract subject to a different proper law.
The most important conclusion to be drawn as a result of this
profile of the cases is that the overwhelming majority of the
decisions involving incidental questions in the broadest sense of
the term deal with matters of status. They arise almost entirely in
relation to problems of succession, determination of marital status
and tort. While ,it is true that contract and ownership issues can
arise incidentally, this seems to happen rarely and even in this
context the issues may relate to status. No other types of questions
seem to arise incidentally. These conclusions will have a bearing on
the search for an optimal or model approach to the solution to
incidental questions.207
(3) Cases where Principal Question is Governed by Law of Forum

The distinction was drawn earlier in this section between two
broad categories of cases that arise in the courts-those where the
principal question is governed by the law of the forum and 'those
where the principal question is governed by a foreign law. It was
also pointed out that only in this second type of case can a "true"
incidental question arise because only here can there be a conflict
of a foreign and domestic conflicts rules in so far as the incidental
question is concerned.
Cases falling within the first broad class of incidental questions--
those arising out of the application of the lex fori-may be thought
to deal only with the application of the conflicts rules of the forum
to the incidental issue. Taking, as an example, a legitimation issue
arising in a succession case, the law of the forum being the law
governing the principal question (succession), one conflicts problem
that can present itself is what actually is the forum's choice-of-law
rule relating to legitimation. If the legitimation has been by sub-
sequent marriage, the question might arise whether the rule at
common law requires the father's domicile to recognise legitimation
by subsequent marriage both at the time of marriage and at the
time of birth of the child.208 In this instance, the case raises only
the normal issue of what is the forum's conflicts rule relating to
legitimation by subsequent marriage. The conflicts problem in an
incidental question falling within this category would be, then,
precisely the same as the conflicts problem arising as a principal
rather than as a subordinate issue in a case before the forum.
207 See infra, section VII.

208 Re Goodman's Trusts, supra, n. 165.

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However, a different kind of problem may have to be faced

this type of case and that is whether the forum should apply
conflicts rule to the incidental issue at hand, i.e. its rule for ch
ing the law of another jurisdiction, or whether it should appl
own domestic (substantive) rules to the issue. In a nutshell
choice here is between the domestic and conflicts law system o
forum. The two might well produce different, even opposite, re
There are many cases that reveal an unwillingness on the part
the court to apply a foreign rule of decision to an incidental
Examples lie mainly, although not exclusively, in the fie
legitimacy, legitimation by subsequent marriage and by adopt
For example, in a celebrated case,209 the House of Lords ignor
the validity of a foreign legitimation and applied an Eng
domestic rule of decision that an heir to English land mus
legitimate "within the narrowest pale of English Legitimacy."
Similarly, the English court held,21' in a case now overruled,2
that, although a child was validly legitimated by recognition un
French law, the child can be "legitimate" only in the sense
English law understands it, i.e. born in lawful wedlock, in accor
with English law. In another case,213 probably no longer good law,2
an English court held that, in so far as original legitimacy was
cerned, legitimate meant legitimate not in any manner author
by the properly selected foreign domiciliary law, for exam
through a marriage involving degrees of consanguinity not pe
mitted under English domestic rules, but in a manner specifie
English rules, i.e. born in lawful wedlock as understood and def
in England. Moreover, English courts have also refused to recog
for purposes of an adoption in England, an act of adoption
under the common domicile of the parties215 and it has
suggested in the Court of Appeal that a valid foreign adop
would be recognised in England, as regards property rights
succession, only if the foreign adoption placed the adopted ch
in a substantially equivalent position to that of the natural chil
of the adopting parent.216 In a broad line of English cases, it
also been held that although a foreign divorce may be valid un
209 Doe ex dem. Birtwhistle v. Vardill, supra, n. 161.

21o Re Don's Estate (1857) 4 Drew. 194, per Janus L.J.
211x Boyes v. Bedale (1863) 1 H. & M. 798.
212 Re Goodman's Trusts, supra, n. 165.
213 Re Paine [1940] Ch. 46.
214 Re BischofJsheim [1948] Ch. 79, 92. The common law rules involved in legit
tion and legitimacy have, in addition, now been largely overtaken by statute law,
in particular by the Family Law Reform Act 1969.
215 Re Wilson 11954] Ch. 733 at p. 774; Re Wilby [1956] P. 174: Re Wil
probably no longer good law; see Re Valentine's Settlement [1965] Ch. 831.
216 Re Marshall [19571 Ch. 507 at p. 523.
26 I.C.LQ.-3

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English conflicts rules, the divorce is not sufficient to bar an appli-

cation by the former wife as a "married woman" under the
Summary Jurisdiction (Married Women) Act 1895, to enforce or
vary a maintenance order 217; nOr iS a marriage validly concluded
under the conflicts rule of the forum, for example, a polygamous
marriage, necessarily sufficient to allow an action for purposes of
enforcing or dissolving it,218 nor is it necessarily sufficient to support
a prosecution for bigamy.219 In a recent Canadian case, the court
ignored the fact that the divorce a wife obtained in a foreign juris-
diction was, by its conflicts rules, probably invalid and applied a
domestic rule, that of estoppel, with the result that the divorce was
accepted as valid for the purposes of the case.220
While the legitimation cases cited above have been overruled and
the legitimacy and adoption cases are probably no longer good law,
all of these decisions, along with American cases,221 illustrate the
application by the forum of its own domestic rather than conflicts
rules to the incidental question. They point to the fact that the
court of the forum may, as a result of interpretation of the
domestic rule of decision or of construction of the rule applicable
to the principal question, come to the conclusion that the relevant
conflicts rule was not intended by the legislature to be, or as a
matter of policy should not be, applied to the incidental question
before it, notwithstanding its foreign features.
It is sometimes said 222 that the court of the forum construes the
domestic law governing the main issue (" children" means "legiti-
mate children," or "next-of-kin" means persons within the class
according to English domestic law) and then looks to foreign law
to determine the status. But this explanation is not consistent with
the way courts behave; they will, on occasion, simply ignore the
foreign status, although it would be recognised under the foreign
law. It is more often said that there is a distinction drawn by
English courts between recognising a status and the results of that
217 Wood v. Wood [1957] P. 254.

218 Sowa v. Sowa [1961] P. 70, and see Hyde v. Hyde and Woodmansee (1866)
L.R. 1 P. & D. 130. (Under the Matrimonial Causes Act 1973, s. 47, the nature of
the marriage, whether monogamous or polygamous, is no longer of essential concern
in determining whether action can be taken in relation to the marriage.) See Cheshire,
op. cit., supra, n. 54, at p. 311.
219 R. v. Sarwan Singh [1962] All E.R. 612.
220 Re Jones, supra, n. 11.
221 In Brown v. Findley, 157 Ala. 424 (1908), the court applied a domestic rule to
a foreign adoption, so as to apply a limitation under domestic law to a claim to
succeed to land. In Grant v. McAuliffe, 41 Cal. 2d 859, 264 P. 2d 944 (1953) a Cali-
fornia court in a tort case declined to apply foreign law relating to the survival of
an action after an injured person's death and, by characterising the rule as proce-
dural in accordance with its domestic law, ignored the foreign rule of decision.
222 Inglis, "Adoption and Succession in Private International Law" (1957) 6
I.C.L.Q. 202.

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status 223 Or the status and the incidents of the status.224 It is

suggested 225 that the courts will recognise the existence of the status
conferred by the law of the domicile, but not necessarily give effe
to the results of it or recognise its incidents. There is a type of ca
where a court must, if it is to uphold a claim, combine the findin
of a valid foreign status under its conflicts rules with a decision t
ignore the results of the status.226 However, courts rarely make th
distinction. In the type of case discussed above, the courts are, in
fact, ignoring or indifferent to the foreign status; they do not
really care what the forum's conflicts rule will tell them about th
status of a claimant. The courts are, in fact, interpreting domesti
rules of decision to apply to the case before them; they are sayin
that a "wife," "widow," "legitimate child," "adopted child,"
"marriage," "divorce," etc. means, in the context of the issue
before them, "wife," "child," "marriage," "divorce," in the
English domestic law sense of the term. Of course, Ithey do not
always do this; in fact they do it relatively rarely, and in some areas
where they have done so in the past (e.g. in legitimacy cases), the
trend has not been "homeward bound" but tending to a more
liberal application of foreign rules. On the other hand, a more
liberal policy can be seen underlying some of the decisions to
ignore a foreign marriage for purposes of compensation or support.
The cases illustrate the process described by Currie 227 in which
a court seeks an answer to an incidental question by construing
domestic law relating to the main issue, since "the determination
of status is almost never the ultimate object of an action" 228. The
" dispositive rule" (in Von Mehren and Trautman's language 229)
or rule of decision that the courts select as applicable to the main
issue is interpreted or regarded as providing the solution to the
incidental question as well. The policy analysis involved in Currie's
hypothetical case,230 leading to the conclusion that the claimant is
entitled to benefits as a "wife" under a Workmen's Compensation
Act even though she cannot prove a valid marriage, is indeed
similar to the processes of legal thought which must have been
223 See Dicey and Morris, op. cit. supra, n. 6, at pp. 227-233.
224 See Robertson, op. cit. supra, n. 79, at pp. 142-145.
225 See Dicey and Morris and Robertson, loc. cit. supra.
226 As, for example, in a succession case when a court recognises the validity of a
foreign adoption under its conflicts rules, but does not give effect to the incapacity
under the lex domicilii of the adopted child, to succeed under a will. It is thus able to
apply the non-disabling rule of the forum. See Anderson v. French, 77 N.H. 509, 93
Atl. 1042 (1915). In Lanham v. Lanham, 136 Wisc. 360, 117 N.H. 787 (1908), the
court of the forum (Wisconsin) recognised the validity of a Michigan divorce but
refused to give effect to it because it violated a rule of Wisconsin that prohibited
remarriage within one year of divorce.
227 See Currie, op. cit. supra, n. 51, at pp. 69-73. 228 Ibid., p. 69.
229 Op. cit. supra, n. 3. 230 See pp. 17 and 18.

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implicit in the line of English cases that ignored foreign marriage

and divorces and applied domestic rules instead.
While it is perhaps only in the exceptional type of case that the
domestic rule is preferred to the foreign one, and while perhaps,
it is arguable that the public policy of the forum is sometimes
better served by ignoring foreign rules in certain circumstances,231
it is important from the standpoint of understanding the incidental
question to appreciate the range of options open to a judge where
an incidental question arises in the course of the application of a
domestic rule of decision on the main issue.
It should be abundantly clear from this discussion that if the court
of the forum decides to apply the foreign lex causae and if a " true "
incidental question arises, it must take careful account of whether
the courts of the lex causae would apply their own conflicts or
domestic rule. This may be an exceptionally difficult question to
judge, as is well illustrated by the British Columbia case of Re
Jones,232 but it is apparent from the cases that courts which deal
with incidental questions that arise in 'the course of applying the
forum's domestic rule of decision to the main issue do not always
utilise their conflicts rules, notwithstanding the existence of foreign
elements and if they do utilise them, they may accept the status
involved but disregard the incidents which the foreign rule attaches
to that status.
It may be concluded from the foregoing discussion that the judge

may-
1. recognise the status of the claimant as determine
231 An extremely interesting illustration of the problems of decidin

domestic or conflicts rule is contained in Mohammed v. Knott [1969]
232 Supra, n. 11. For the facts in the case, see n. 243, infra. The firs
issue in the case was where the first wife was the " widow" within th
the testator's will and thus entitled under that instrument. As noted,
Columbia Supreme Court did not have to choose between conflicting r
flicts law because it applied its domestic rule (rule of estoppel), not its con
to the issue before it. Had it applied its conflicts rule in determining th
the Nevada divorce, the answer to the first incidental question as w
second incidental question would have been the opposite to that whi
actually reached. The first wife would have been the " widow " becaus
divorce would not have been valid in British Columbia. The second wif
then, have been the " widow ". There would have been a genuine conflic
rules relating to the validity of the divorce and the court would have
the conflicts rule of the forum and not that of the matrimonial domicile
avoid finding that there were two wives under the will. Had the case a
the United Kingdom, or a U.S. State, or another Canadian province,
would obviously have turned on whether the forum would have decided
conflicts rule of British Columbia or its own conflicts rule or the dom
British Columbia (i.e. its rule of estoppel). It is thus apparent that the
which a court handles incidental questions which do not involve a "tru
of conflicts rules may have a direct bearing on other possibly "true"
questions arising in the same case or on the outcome of a decision in the s
being taken by another jurisdiction.

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foreign law selected by the conflicts rule of the forum an

without significant variations; or
2. recognise the status of the claimant as determined
foreign law selected by the conflicts rule of the forum bu
the results or incidents of the status, applying, instead, a
rule of decision to determine the results or incidents; or
3. ignore the status of the claimant as determined by the
law selected by the forum's conflicts rules and apply the
rule of decision without regard whatsoever to the status.
(4) Cases where Principal Question is Governed by a Forei

The second category of incidental question, or "true" in
question, arises when the principal question is govern
foreign law and there is a difference between the law of th
and the lex causae in so far as the incidental question is co
As was noted earlier, in the first type of incidental questio
the lex causae is the lex fori, the choice-of-law is narrowe
preference for the conflicts or domestic rules of the forum
second type or "true" incidental question, there is a con
conflict or other foreign laws that may be applied to the in
issue. The difference is between a choice of two or a m
choice of potentially applicable laws. In the potential m
choice situation involved in a true incidental question, it w
have been seen from the earlier discussion that the forum's choice
of applicable laws to the incidental question is by no means limited
to its own conflicts rules or those of the lex causae; the full range
of choices is:
the conflicts rule of the forum;

the domestic rule of the forum;
the conflicts rule of the lex causae;
the domestic rule of the lex causae;
to which we must add, if the renvoi doctrine is taken into account,
the conflicts rule of the transmitting State;
the domestic rule of the transmitting State;
and possibly, as advocated by some writers,233
some other construct based on potentially applicable rules of
one or more of these jurisdictions.
When one comes to an analysis of the cases in which the broader
type incidental question is present, the first point that needs to be
recognised is that these situations are not hypothetical and do in
fact arise, probably with increasing frequency. It is possible to
233 See Wengler, Nouveltes rdflexions, supra, n. 7.

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count somewhere in the neighbourhood of 27 cases in common law

jurisdictions where a " true " incidental question is reported to have
arisen in the context of applying foreign law to a principal question
in a dispute. It is characteristic of all cases involving the incidental
question that the courts have not been conscious of dealing with
the incidental question as a specific topic or problem of private
international law.234 This should not, however, mislead one into
thinking that the courts are not often clearly aware that the ques-
tion before them, in so far as the principal question is concerned,
involves a choice between applying a rule of the jurisdiction govern-
ing the principal issue and a rule of the forum.235 On the other
hand, courts will sometimes apply a rule to the subsidiary issue which
happens to be the rule both of the lex fori and lex causae so it is
not always possible to know precisely on what basis they selected the
rule. Thus, it is possible, in such situations, to dispute and dispute
at length whose law, in effect, the judge applied.236
With these qualifications in mind, one might hazard the rather
surprising opinion that there is very little authority to be found in
the English language cases to support the application of the lex
fori to incidental questions, in preference to the lex causae. Only
about eight cases can be cited at all in support of the proposition.
In one of these cases, Shaw v. Gould, the law governing the main
question also appears to have been the law of the forum although
this has sometimes been disputed.237 A second, American case,
Re Degaramo's Estate,238 does actually seem to support the applica-
tion of the lex fori. In this case, a question arose in New York
concerning the status of a wife in a claim arising out of an accident
234 See, however, Travelers Insurance Co. v. Workmen's Compensation Appeals

Board, 434 P. 2d 992 (1967), discussed in n. 3, supra.
235 See, for example, Schwebel v. Ungar (1963) 42 D.L.R. (2d) 622; (1964) 48
D.L.R. (2d) 644.
236 See, in particular, Re Stirling [1908] 2 Ch. 344, a case of legitimacy arising in
connection with succession of Scottish land. Under the conflicts rule of both Eng-
land and Scotland, as well as under the domestic law of Scotland, the claimant was
illegitimate. See Robertson, op. cit. supra, n. 74, at pp. 149-150 and Gotlieb, op. cit.
supra, n. 1, pp. 538-539. Dicey and Morris are doubtful (op. cit. supra, n. 3, p. 36,
n. 8), as is Welsh (1947) 63 L.Q.R. 86, n. 5 and 87, n. 7.
237 (1868) L.R. 3 H.L. This case raised the question of the legitimacy of a
claimant to English lands and funds held under English trusts. One may conclude
that the court here applied its own conflicts rule to the question of the validity of a
divorce in preference to the Scots rule only if one interprets the case as one involv-
ing the application of Scots law to the principal question (the validity of the marriage).
There is no agreement on this issue; see Morris, Cases on Private International Law
(2nd. ed., 1951), pp. 80-81, for the view that the lex causae was Scotland and his
modified view in Dicey and Morris, p. 36, n. 8. See Gotlieb, op. cit. supra, n. 1, pp.
535-537. If one regards legitimacy as determined by the law of the domicile of
origin of the child (see Cheshire, op. cit. supra, n. 54, p. 448; but contra, see Dicey
and Morris, pp. 431 et seq.), the case supports the view that Scots law governed the
principal question.
238 33 N.Y.S. 502 (1895)

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in Ohio. The New York court applied its own and not Ohio's
conflicts rule in determining the validity of a Michigan divorce
decree. A third, Canadian case, although of doubtful validity, also
lends support to applying the lex fori. In Re Lee Cheong and the
Succession Duty Act,239 a testator, dying domiciled in China,
bequeathed property in British Columbia to his two wives, both of
whom he had married in China while domiciled there. The Supreme
Court of British Columbia determined that succession duty was
payable by both wives, neither being able to claim a widow's exemp-
tion since their polygamous marriage, although valid under the law
of the domicile, would not be recognised under British Columbia
law. Thus, the court did not apply the conflicts rules of the legal
regime governing the main question (China); it employed its own
domestic rule or policy.
A fourth (English) case is too old and obscure to be of any
assistance.240 In two other cases, it is quite impossible to be sure
what law was actually being applied 241; while the remaining cases
deal with the rather special problem of secondary characterisation,
i.e. once a foreign law has been selected to govern a case, a par-
ticular rule of that legal regime may or may not be considered as
applicable depending on whether the forum adopts its own character-
isation of it or that of the lex causae. Among these last cases, some
do seem to apply to the characterisation rules of the lex fori.242
There is, however, considerably more support in favour of apply-
ing the rules of the lex causae to the incidental question and the
support seems to be increasing, as a result of several decisions in
recent years. One would have to count two top-level courts, the
High Court of Australia and the Supreme Court of Canada among
those who have made decisions to apply the lex causae.
There are, perhaps, in the neighbourhood of 19 cases that have
been or could be cited in favour of applying the rules of the legal
239 [1923] D.L.R. 2, 52.
240 Ingham v. Sachs (1887) 56 L.T. 920. The court appears to have applied the
forum's conflicts rule to determine the validity of a German divorce, rather than
the different conflicts rule of the domicile (Austria).
241 Gray v. Gray, 87 N.H. 82, 174 A. 508 (1934). In this tort action by a wife
against her husband, the New Hampshire court appears to apply its own law in
determining the validity of a marriage, rather than looking to the lex loci commissi
delicti (governing the main question). In this case, as in the similar case of Dawson
v. Dawson, 224 Ala 13, 138 So. 414 (1931), the language is inconclusive and it is
likely that by all relevant laws the marriage would be considered valid.
242 In Grant v. McAulifJe, 41 Cal. 2d 859, 264 P. 2d 944 (1952) the California
court applied, as procedural, its own characterisation of the question of survival of a
cause of action after death rather than the substantive characterisation of the lex
loci commissi delicti. Again in Mertz v. Mertz, 271 N.Y. 466, 3 N.E. 2d. 597 (1936)
a rule of the forum (N.Y.) barring actions between husband and wife was applied in
the case of an accident occurring in Connecticut, where such actions were allowed,
the court seeming to regard the rule as personal (i.e. applicable only as a rule of the
lex Jori) rather than territorial (i.e. applicable as a rule of the lex causae).

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regime governing the principal question. Of these, seven-all

American-involve tort as the main issue,243 six involve succession,244
while five cases deal with matrimonial causes as the principal ques-
243 Meisenhelder v. Chicago & N.W. Ry., 170 Minn. 317, 213 N.W. 32 (1927). It
has been pointed out (Harper, "Torts, Contracts, Property, Status, Characterisation
and the Conflict of Laws" (1959) 59 Col.L.R. 440 at p. 455) that the action in
Minnesota was brought under a federal law, the Federal Employers' Liability Act.
While it was thus a federal law that was being considered, it would seem, neverthe-
less, that the conflicts rule of the lex causae on the celebration of marriages was
being applied; hence the case does seem to illustrate a preference for the conflicts
rules of the lex causae.
Gray v. Gray, supra, n. 241 and Dawson v. Dawson, supra, n. 241, applied a rule
of the lex loci commissi delicti, the law governing the main issue and, as a result,
barred a wife from suing her husband.
Nelson v. Eckert, 231 Ark. 348, 329 S.W. 2d 426 (1959) the Arkansas court, taking
a different approach than the California court in Grant v. McAuliffe, supra, n. 242,
characterised a rule relating to the survival of a claim as substantive and thus applied
the rule of the lex causae.
Traglio v. Harris, 104 F. 2d 439 (1939), concerned an accident in Oregon to which
the negligence of the plaintiff's son was alleged to have contributed: the California
court applied the rule of the lex loci commissi delicti, the lex causae, which did not
impute negligence. It did not apply its own domestic rule which did so.
Hopkins v. Kurn, 351 Mo. 41, 171 S.W. 2d 625 (1943), involved a question of con-
tributing negligence arising in an accident in Oklahoma. The Missouri court adopted
the Oklahoma characterisation, as procedural, of an evidentiary rule and not its own
characterisation of the rule, which it appears, was substantive; the result was that
the forum did not apply the Oklahoma provision on contributory negligence, apply-
ing instead its own rule on the matter.
Emery v. Emery, 45 Cal. 2d 421, 289 P. 2d 218 (1955). Children sued their father
in California for an accident occurring in Idaho. The court did not apply the Idaho
rule barring the action; viewing the question of suits by children against parents as
having nothing to do with tort, but concerning personal law, the court ignored the
Idaho rule and applied the lex fori which was also the domicile of the parties.
244 Sneed v. Ewing, 5 J.J. Marsh. 460 (1831). In an action in Kentucky claiming
property of someone dying in Indiana, the court applied Indiana law, the lex succes-
sionis, and not its own domestic rule in favour of putative marriages. While the
claimant was illegitimate under both laws, the forum expressly refers to and clearly
applied the conflicts rule of the lex causae.
Re Johnson [1903] 1 Ch. 821. For a summary, see, infra, text related to n. 250.
Dogliani v. Crispin (1866) L.R. H.L. 301. In this case, the plaintiff was illegitimate
both by the lex fori, England, and the lex successionis, Portugal, but the plaintiff
succeeded as the natural son under Portuguese domestic law. However, as a foreign
judgment was involved, it does not seem that the case can be regarded as having
much authority in so far as the incidental question is concerned.
Re Stirling [1908] 2 Ch. 344. In this case, in which a question of succession to
Scottish land arose, the English courts applied Scots law to the question of the
legitimacy of the claimant; however, all potentially applicable laws led to bastardy.
See Gotlieb, op. cit. supra, n. 1, at pp. 538-539 and authorities therein cited for a
different view of the case.
Baindail v. Baindail [1946] P. 122. Lord Greene M.R. indicated, obiter (at pp.
127-128) that the lex successionis controls the determination of incidental questions:
" If a Hindu domiciled in India died intestate in England leaving personal property in
this country, the succession to the personal property would be governed by the law
of his domicile; and in applying the law of his domicile effect would have to be given
to the rights of any children of the Hindu marriage and of his Hindu widow, and for
that purpose the courts of this country would be bound to recognise the validity of
a Hindu marriage so far as it bears on the title to personal property left by an
intestate here; one can think of other cases."
Haque v. Haque (1962) 108 C.L.R. 230; [1964] A.L.R. 34 is summarised infra
in the text related to n. 249.
In Re Jones (1961) 25 D.L.R. 2d 595 a testator, domiciled in British Columbia, left
legacies to the " issue " and " widow " of the testator's son. The son divorced his first

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tion,245 Of the total of seven tort cases, the incidental question in

six involved a matter of characterising a rule of the lex causae and
applying it to the case at issue.246
(i) Tort cases

So far as these cases are concerned, only one, Meisenhelder v.
Chicago N.W. Railway,247 seems to provide a clear example of a
preference for the conflicts rules of the lex causae over those of
the forum. In an action in Minnesota, concerning a claim by a
surviving widow for the wrongful death of her husband in Illinois,
the court applied the lex causae, an Illinois statute on marriage
evasion, which invalidated the claimant's first-cousin marriage in
Kentucky, rather than its own conflicts rule which would have
recognised the Kentucky marriage to be valid.
The other tort cases,248 dealing as they do with characterisation,
do not examine how the foreign court in question would in fact deal
wife in Nevada while domiciled in California, married again in Nevada, returned to

California with his second wife, and, while domiciled there, had a son. Three inciden-
tal questions arose: (1) Was the first wife a "widow" within the meaning of the
testator's will and thus entitled under that instrument? (2) Was the second wife a
"widow" and so entitled? (3) Was the grandson legitimate and entitled under the
will as "issue " of the testator's son? With respect to the first incidental question, the
lex causae, the law of the succession, was also the forum so no conflict of conflicts
rules could arise. The British Columbia Supreme Court held that the first wife, having
agreed to be a petitioner in the Nevada divorce, was estopped from denying its
validity and thus was not entitled under the will. With respect to the second incidental
question, the court held the second wife was entiled to succeed as " widow " because
under California law, the law of the domicile of the parties to the second marriage at
the time of the Nevada ceremony, the marriage would be recognised in the absence
of it being open to "collateral attack" by an interested party. In this case, the lex
causae of the second marriage,, was not the lex fori, so a conflict could arise. How-
ever, California law, as the law of the domicile, was applicable under both the lex
fori and lex causae. With respect to the third incidental question, the court found
the grandson entitled to share because he was legitimate by the law of his domicile
of origin, California. As the forum was the lex causae, the law of the succession, no
conflict of laws could have arisen with respect to the incidental question.
245 For Schwebel v. Ungar, R. v. Brentwood Superintendent Registrar of Mar-
riages and Padolecchia v. Padolecchia, see text related to nn. 254, 255 and 256. In
Breen v. Breen [1964] P. 144, the English court, in an annulment suit alleging the
invalidity of the husband's second marriage to the petitioner's wife, applied Irish
law, the lex loci celebrationis, to test the validity of the preceding divorce, although
the parties were both domiciled at all material times in England. Under both Irish
and English law, the divorce was valid. Although the decision on the applicable law
is immaterial, it is difficult to see why the learned judge looked to Irish law for
determining the validity of the divorce, given that the parties were at all times
domiciled in England, cf. Frew (orse Reed) v. Reed (1969) 6 D.L.R. (3d) 617. In
Hashmi v. Hashmi [1972] Fam. 3; [1971] 3 All E.R. 1253, a petition for divorce, the
English court applied Pakistani conflict of laws to determine the legitimacy of
children in England, the father being domiciled in Pakistan, it would seem that the
court could have applied English rather than Pakistani conflicts rules but chose
the latter's rules. However, the legitimacy of the children may have been recognised
because they were legitimate according to their father's domicile, if this is regarded as
constituting the domicile of origin of the child.
246 See cases cited supra at n. 243.
247 Ibid.
248 Ibid.

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with the issue if it was seized with it; the courts of the forum simply
accepted the characterisation rules of the lex loci commissi delicti.
What the forum did not do, in these cases, was examine whether
the foreign court, in dealing with the incidental issue before it, if it
were seized of the problem, would have applied the rule in question
to it (e.g. their own domestic rule concerning survival of actions,
rights of children to sue parents, etc.) or would, in fact, have applied
the law of the domicile or some other foreign law and not their
own. In other words, in the American characterisation cases, the
courts usually seem to be applying the characterisation rules of the
lex causae, leading thus to the application of the foreign domestic
rule and ignoring the fact that the courts of the lex causae might
apply the characterisation rule of the lex fori, leading thus to the
application of a domestic rule of the latter system.
(ii) Succession cases

Succession cases provide some additional authority for applying
the rules of the lex causae (the law governing the succession). Of
the cases cited, three seem clearly to constitute authorities in favour
of this position. In Haque v. Haque,249 a succession case in the High
Court of Australia, the court recognised the validity of a marriage
valid by the lex successionis (India) even though the marriage did
not comply with the Western Australian Marriage Act. Thus, it
appears that the forum did not apply, in accordance with its own
conflicts rules, the lex loci celebrationis (Western Australian law) but
the conflicts rules of the lex successionis (India law), which led to
the application of the Indian rule and the recognition of the validity
of the marriage. In Re Johnson,250 the forum (England) recognised
the legitimation of a Maltese woman under the Maltese law of
succession, although the English conflicts rule on legitimation would
have selected English law. An obiter dictum in Baindail v.
Baindail 251 also gives support to the application of the conflicts rule
of the lex causae. Four other cases-Sneed v. Ewing, Dogliani v.
Crispin, Re Stirling, and Re Jones 252 might possibly be considered to
point in the same direction but, for a variety of reasons, are of very
limited value as precedents.
(iii) Matrimonial causes

The category of cases involving matrimonial causes contain some
of the most recent authorities in favour of applying to the incidental
question the conflicts rules of the legal regime governing the main
249 Supra, n. 243. 250 Ibid.
251 Ibid. 252 Ibid.

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question. Of the five cases that seem relevant, two are of li

value,253 while Schwebel v. Ungar,254 R. v. Brentwood Supe
ent Registrar of Marriages,255 and Padolecchia v. Padolecc
are decisions of some significance in relation to the incidental
question.
Schwebel v. Ungar has come to be cited as the leading case in
this area of private international law 257 and has been the subject
of considerable comment and debate.258 In a suit for nullity of
marriage on the grounds of a bigamous ceremony, the Supreme
Court of Canada, affirming the decision of the Ontario Court of
Appeal, appeared to have applied to the incidental question, the
validity of a Hungarian divorce, the conflicts rule of the domiciliary
law governing the main question, Israel, rather than its own conflicts
rule for determining the validity of a divorce. While domiciled in
Hungary, but on route to Israel, the parties were divorced by a
Jewish divorce (get) in Italy. The parties both then acquired a
domicile in Israel and the wife, while visiting Canada, entered into
a marriage ceremony in Toronto with her second husband. She
then petitioned in Ontario for a decree of nullity of the second
marriage. The basis of her claim was that at the time of the second
ceremony she was still married as according to the law of her
domicile at the time of divorce, Hungary, the Jewish divorce was
not valid. If the Ontario Court applied the existing rule of the forum
to determine the validity of the divorce, the law of the domicile at
that time, it would have reached the conclusion that the second
marriage was invalid. However, the Ontario Court appeared to have
applied the conflicts rule of the wife's premarital domicile at the
time of the second marriage, Israel, by whose conflicts rules the
Jewish divorce was valid. The court accordingly held that the wife
had the capacity to enter into the second marriage and that it
therefore was valid.
It has been argued 259 that had the wife in Schwebel v. Ungar
petitioned the Ontario Court for a declaration as to her marital
status before her remarriage, the result would have been different,
as Ontario would have applied its own conflicts rule. But it is not
apparent why this would be so as, in a declaratory suit, the Ontario
Court would again have looked to Israel's law as the domiciliary
law governing the capacity to marry and have thus reached the same
253 Breen v. Breen and Hashmi v. Hashmi, supra, n. 245.

254 (1963) 42 D.L.R. (2d) 622; (1963) 48 D.L.R. (2d) 644.
255 [1968] 2 Q.B. 956. 256 [1968] P. 314.
267 See Morris, Cases on Private International Law (4th ed. 19
2s58 See Lysyk (1965) 43 C.B.R. 363, for a detailed analysis
(1965) 14 I.C.L.Q. 659, commenting critically.
259 Cheshire, op. cit. supra, n. 55, at pp. 55-56.

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result. It has also been argued,260 more persuasively, that had the
first husband come to Ontario and acquired a domicile, and had
the validity of the husband's second marriage then been tested in the
court, Ontario law, qua law of the domicile, would have governed
the main question in the case, the validity of the second marriage,
and the incidental question would then have been determined by
the Ontario conflicts rule; there would have been nothing to connect
Israel to the case. The absurd result would then have been followed
that the divorce would have been valid for the first wife but invalid
for her husband.
This would certainly constitute an undesirable inconsistency but
one may question whether it would have actually been the result of
the testing of the husband's second marriage in an Ontario Court.
The court might well have looked to all potentially relevant laws
and fashioned a result that would have embodied the legal policy
they were seeking to develop.26' Moreover, it would seem that the
result of Schwebel v. Ungar is that Ontario will recognise a foreign
divorce, invalid by the parties' domicile at the time of the divorce,
if the parties subsequently acquire a domicile which treats the
divorce as valid. In other words, the result of Schwebel v. Ungar
might have been to change the existing conflict-of-laws rule of
Ontario in relation to foreign divorces to the new rule that a
foreign divorce will be recognised as valid by Ontario law if valid
by the law of the parties' domicile at the time of divorce or by a
domicile that they subsequently acquire.262 It is difficult to surmise
whether the rule-if it is a rule-goes further than this to recognise
a divorce when the subsequent domicile of only one of the parties,
the party to the second marriage, would recognise the divorce.
Schwebel v. Ungar was, a few years later, approved by the
English Probate court in Padolecchia v. Padolecchia.2B63 In this
case, a petition for nullity, the court found that the marriage in
question was invalid because the petitioner, by his domicile, Italy,
lacked capacity, being already married. A question arose, however,
about the validity of a Mexican divorce purportedly dissolving the
first marriage, when the petitioner was, as he alleged, domiciled in
Venezuela under whose laws the Mexican divorce would have been
recognised. The probate court found that the petitioner never
acquired a Venezuelan domicile but it went on, obiter, to examine
260 Lysyk, op. cit. supra, at pp. 378-379.

261 See the approach to this problem suggested below: Section VII.
262 See Ehrenzweig and Jams, Private International Law: A Comparative Treatise,
Vol. 2 Special Part (1973), at pp. 183-184. (" While most writers have discussed this
case in the precarious context of an assumed 'preliminary question' . . . , it seems
that the result was ultimately based on an interpretation of an Ontario marriage
rule.. ." at p. 183). 263 Supra, n. 256.

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whether the petitioner's second marriage would have been

he had acquired a domicile after the divorce which recogn
divorce as valid. The learned judge expressly approved Schw
Ungar and went on 'to say that "i[n] my view to consider t
of the propositus at the time of the antecedent divorce, rat
at the time of the subsequent marriage, might be to deny to
power to change his capacities by changing his domicile or
nationality." The rule that thus seems to emerge is that English
law will uphold a divorce if valid by the law of the domicile of the
parties at the time of the divorce or at the time of a subsequent
marriage.
Finally, the case of R. v. Brentwood Superintendent Registrar of
Marriages 264 adds further authority to applying the conflicts rules
of the lex causae to the incidental question. In this case, concern-
ing an application for an order of mandamus to direct the issuing of
a marriage certificate, the principal question was the subsistence or
otherwise of a marriage and the incidental question on which the
validity of the marriage depended, was the validity of a previous
divorce. Under English conflicts rules, the domestic law of the
domicile of the husband, Switzerland, treated the divorce as valid.
But under the conflicts rule of the law governing the marriage,
Switzerland, the divorce was invalid because Switzerland would have
applied the law of the nationality, Italy, according to which law the
husband had no capacity to marry. The Queen's Bench applied the
conflicts rule of the law governing the main question, Switzerland,
and found the divorce to be invalid and that, accordingly, a lawful
impediment existed to the second marriage.
While the case, on one reading, seems to provide clear support
for applying the conflicts rules of the lex causae and not the lex
fori, another interpretation seems fully consistent with the reason-
ing of the court. It must be borne in mind that the Swiss divorce was
valid both under the lex causae (Swiss law) and the lex fori (English
law). But Swiss law did not regard the Italian national as free to
remarry because of an impediment under his national law notwith-
standing the validity of its own divorce decree. The effect of the
decree was, it seems, to dissolve the marriage, but not to leave the
husband free to remarry. In the circumstances, all that was neces-
sary for the English court to do, to realise the result it achieved, was
to characterise the problem as one relating to capacity to marry,
regarding this as the principal issue before it, then apply its tradi-
tional conflicts rule to determine capacity, i.e. the lex domicilii, and,
applying renvoi, discover that, by the law Switzerland would apply,
264 [1968] 2 Q.B. 956.

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the party was not free to marry. The judge thought the Swiss rule
to be an unattractive one, but nevertheless, that it had no choice
but to recognise the incapacity imposed by the domicile.
Whatever interpretation is given to the case, it is clear that the
Queen's Bench was cognisant of the fact that the husband's
incapacity would have been recognised by the laws of the countries
surrounding his domicile and that England was being chosen as a
convenient forum for evading Swiss law.265 In one particularly
significant passage, Sachs L.J. stated that-
it is perhaps apposite to note that very frequently of recent years attention
has been called to the scandal of marriages which are valid in the country
but not valid in other countries. They institute one type of limping
marriage: there are, of course, many other types. It seems to me that the
courts of this country should lean against increasing the number of such
limping marriages and it is to be observed that whatever might happen as
regards this proposed marriage either here or in Switzerland, it would
have no validity in, for instance, Italy, where it would not be recognised
as [the husband] is an Italian national.266
While in all of the matrimonial cases, the reasoning of the courts
is hard to pin down and it is usually possible to find an alternate
ratio decidendi, they nevertheless seem to show, along with some
of the legitimacy cases, a tendency 'to respect or follow the status
that would be accorded by the domicile of the party or parties
concerned. The courts seem, as it were, to prefer the application
of that law, which is usually the lex causae, as being the funda-
mentally appropriate law to respect. The judges seem to find some
intrinsic connection with the foreign law of the domicile and
accordingly seem reluctant to achieve results incompatible with
the application of that law. If then, the characterisation of the
problems in a case with many foreign elements or the approach
of choice-of-law rules would lead Ito the application of the lex fori
which in turn would achieve results different from those of the
lex causae, the courts seem reluctant to go down that path. This
may be attributed in part to a desire to promote a certain degree of
international consistency as regard the status of the parties or a
desire to avoid being chosen as a favourable forum, but whatever
the reasons, the tendency to apply the foreign rules is evident.
It should also be noted that there are certain similar tendencies in
evidence in continental cases in which incidental questions arise. It
is outside the scope of this paper to enter into a detailed analysis
of continental jurisprudence, but there have been a substantial
number of cases on the Continent (France, Switzerland, Germany,
Austria) where incidental questions have arisen. An analysis shows
that, as with the cases arising in English-speaking jurisdictions, the
265 Ibid., pp. 971-972. 266 Ibid.

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overwhelming majority concern matters of status.267' Wh

number of decisions the law of the forum seems to have b
ferred and while it is not possible to rationalise all of the d
the more recent tendency appears to be in favour of appl
the incidental question the rule of decision of the foreign
rather than that of the forum.268 In those cases where the
has been applied, the regime of the forum was itself d
involved, e.g. through granting a divorce or celebrating a m
or the forum was the personal law of one of the parties.2
overall attitude seems, once again, to limit rather than fa
"intrusion" of the rules of the forum into matters involvi
arising under the personal or domiciliary law of the
concerned.
VII. MODELS AND PRIME CONSIDERATIONS
On the basis of an investigation of the actual cases and the wr

of jurists, it is possible to develop a methodology which m
267 See supra, pp. 761-763.
268 See, for example, decision of Swiss Federal Tribunal of Nov. 11, 1954, R
Officiel, Vol. 80, ler partie, p. 427, et s. 46 (1957) R.C.D.I.P. 52, where, in a
tion similar to that arising in the Brentwood case, the court ignored its own
decree and applied the law governing the main question (the lex patriae-
law) to invalidate a second marriage occurring in England. A similar decisi
reached in Dame Petrone c. Petrone, a decision of the Tribunal Civil de Sei
June 2, 1942 (see [1943] Nouvelle revue de droit international privd, 117) wh
French court, in circumstances again similar to those of the Brentwood case,
the capacity of an Italian national to remarry because of his disability under
law, notwithstanding the existence of a French divorce. In another simila
Prlisident des Hanseatischen Oberlandesgerichts Zu Hamburg, of Aug. 5, 1955
346 2E. L 2c/144, 52 R.C.D.I.P. 50, the Hamburg Tribunal, in an application
Scots-domiciled British subject to remarry in Germany, was not prepared to rec
his single status, notwithstanding a German divorce, because under Scots l
applicant lacked capacity to remarry. The court advised him to obtain a Scots
or give up British nationality. For a similar result, see Decision of Jan. 14, 19
Appeal Court of Berlin, discussed in (1957) 52 R.C.D.I.P. 59 (Juristische Woche
1925, 2146). In dealing with a question of legitimacy of children by a second mar
the Supreme Court of Austria on October 25, 1952 (see (1955) 44 R.C.D.I.P
(Entscheidungen des Osterreichischen Gerichtshofes in Zivilund Justiwerwaltungs
Vol. 25, 1952, No. 285), upheld the validity of a second marriage by applying B
law (the lex causae) although under the Austrian conflicts rule the marria
invalid. For a similar decision see that of Regional Court of Cologne, Feb. 20,
(1955) 44 R.C.D.I.P. 112, 1 6 T 12/53 Monatschrift Fur Deutsches Recht, 7
1953, p. 488.
269 Two early cases seem to support the application of the lex fori: decision of
Reichsgericht of Mar. 21, 1912 (see Gotlieb, op. cit. supra, n. 1, at p. 541 for refer-
ences) and decision of Tribunal de Rabat, Dec. 28, 1932 (Loupetis v. Quemener)
(ibid.; see also n. 7, supra) where in each case the court upheld the validity of its own
divorce decree and found the subsequent marriage valid. To do so, it applied its
own conflicts rule or, as in the Loupetis case, its domestic rule to the incidental ques-
tion. A similar conclusion was reached in Sciachi v. Sciachi, Tribunal de la Seine,
Mar. 7, 1948; (1948) 37 R.C.D.I.P. 112. In a decision of Oct. 16, 1952, the Tribunal
of the Canton of Zurich adopted a similar approach and applied the lex fori but as
noted supra, the Swiss Federal Tribunal applied the lex causae in similar circumstances
two years later. In a decision of Sept. 12, 1955 (1956) 45 R.C.D.I.P. 86) the Tribunal
of first instance of Berlin (83 Zivilkammer) in a legitimacy case, appeared to ignore
the conflicts rule of the lex causae.

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provide some clarity and guidance in dealing with incidental

questions.
The analysis contained in this article has so far provided an
essentially negative answer to the inquiry concerning whether any
general rules are applicable to the solution of incidental questions.
This fact emerges from the confusion which inevitably attends any
attempt to introduce a sense of general cohesion or order into the
actual cases. It also emerges with great force from the vast number
of "exceptions" which most jurists specify when they attempt to
lay down general rules. They add up to the obvious failure of any
logical or mechanical method to provide a key to the solution of
incidental questions.
But it is submitted that it is possible to adopt a helpful method-
ology and the starting-point for developing it is to be found (i) in
the cases and (ii) the analytical writings.
(1) The Cases

The cases establish three points beyond any doubt: that actual con-
flicts can and do arise in the selection of rules to apply to incidental
questions; that the overwhelming majority of cases, virtually all of
them, deal with problems that relate in one form or another to
personal status; and that, as Currie observed, "the determination of
status is almost never the ultimate object of an action." 270 These
incidental issues may arise in a succession case, or in nullity, divorce
or support proceedings, or in a workman's compensation case,
wrongful death proceedings or an action for negligence, but what-
ever the context, they give rise to questions of personal status. It is
a fair surmise that in view of the increasing mobility of individuals
and the family, and having regard to the growing ease with which
marriages are legally terminated, there will, in future years, be a
steadily increasing number of cases in which ,two or more jurisdic-
tions are involved, with resulting basic disparities among the
variety of potentially applicable personal laws.
These cases will involve problems of interpretation, policy, con-
sistency, uniformity, equity and fairness. In the absence of the
development of uniform personal laws in Europe, Asia and else-
where, it must also be expected that the courts will be called upon
to exercise such qualities as legal ingenuity, restraint, creativity,
compassion or any combination of these, to reach the conclusions
they regard as fair and correct. There seems little reason to doubt
that judges in dealing with these complicated cases of conflicting
laws, multiple relationships, so-called limping marriages and other
270 See op. cit. supra, n. 59.

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similar conditions, will have so many facts and rules within their
reach that they will tend to attain the solutions which they perceive
to be fair, and find, somehow, the legal reasoning which will justify
their conclusions. When we look at some of the methods or devices
available to a judge-characterising the main problem (as one of
succession, personal law, land, contract, etc.) with all its implica-
tions for the choice of applicable laws; applying renvoi either
partially or completely or not applying it; engaging in "secondary"
characterisation of the selected foreign rules; classifying them as
substantive or procedural or by subject matter, so as to obtain the
desired connecting factor; interpreting or construing a foreign rule
or decision or a domestic rule or decision; dealing with incidental
questions directly; selecting, changing or developing an existing
choice-of-law rule; discerning public policy imperatives or the
public order of the forum-it becomes obvious that the courts have
all the tools they need to make their way toward the decision which
they consciously or unconsciously wish to reach.
When one looks to the various cases and the decisions that the
courts have made, it becomes possible to construct certain general
types of problems and regard these as models of actual conflict situa-
tions which could arise again in the future. There can, of course,
be no guarantee that they will do so, but having regard to the
specific areas where conflicts have always arisen and the types of
questions dealt with in the past, the search for "model" problems
may not prove a vain one. Moreover, when one looks to the devices
or methods the courts have used to help resolve issues and, equally
importantly, some of the concerns they have expressed, it becomes
worthwhile to try to explore the question whether there are any
prime considerations which should be taken into account when
dealing with the model of the problem.
(2) Views of Legal Experts

While the extensive writings of academic lawyers have often tended,
as was suggested above, to cause confusion and uncertainty in an
area which, because of complex factual situations and multiple
points of contact with different legal systems, is already sufficiently
complicated, their thorough and detailed analyses of the workings of
the judicial process in the conflicts sphere can help provide some
insight into how different types of incidental questions can be
handled. One can garner, from their writing, keys to different types
of international legal conflicts and these, once they are sorted out,
may be helpful to those in search of solutions, provided that a
single key is not expected to open all doors. The main problem has

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been the expectation that a single coherent approach, albeit subject

to exceptions, can provide the path to the solution of all incidental
problems. The keys which may be found in the writings do not
actually provide an entrde to any firm principles or rules; rather,
they can provide access to a better understanding of the prime
concerns or considerations of the type a court occasionally expresses,
which in a particular type of situation or context, will probably
outweigh other considerations and provide a method of solution.
Employing, in this manner, a methodology of models of problems
and prime considerations affecting their solution, one might obtain
a stronger grasp of the legal issues involved in a particular problem
and the kind of solution which would prove most desirable. The
models set out below are not arranged in any specific order but tend
to move from problems that may be easier to resolve to those that
are the most difficult.
It should also be noted thait the models include some situations
where the law of the forum is also the law governing the main
question, that is to say, where the incidental question arises out
of the application to the main question of a domestic rule of decision
and not a foreign rule. It is essential to include certain situations of
this type, first, because, as was pointed out earlier, conflicts do arise
with regard to the incidental question, as between the conflicts rules
of the forum and the domestic law of the forum and, secondly, the
methodology involved in attaining a solution in this type of case may
be directly relevant in determining what law a foreign jurisdiction
would apply if it were seized with the principal question.
In studying the model problems that follow and the prime con-
siderations which might apply, it is also essential to take account of
the fact that the suggested solutions inevitably involve value judg-
ments and other subjective factors and that it might well be that the
reader or another commentator might find the application of other
considerations more persuasive or balance the various factors in a
manner different from that described below.
Model Problem 1
Incidental question arising in application of a domestic rule of

decision.
Example (a) Tort/Family Law

Comparable situation: Masacco v Schaaf271
Facts: A husband and wife are domiciled in the forum (F). The
husband is fatally injured while at work. The wife sues the em-
271 Compare Masacco v. Schaaf, 234 App.Div. 181, 254 N.Y. Supp. 439. See
also Currie's example, cited in text related to n. 60 supra.

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ployer for damages, as a surviving spouse, under the local Em-

ployers' Liability Act. The defendant maintains that the claimant is
not the wife because the marriage took place in another State, X,
where the parties were domiciled at the time, and was not valid by
that law.
Considerations: The marriage is invalid under both the conflicts
and domestic rules of F. The rule of F allows a spouse to succeed,
in a domestic case, if she lived with him for many years and was
dependent upon him for her maintenance, regardless of the validity
of the marriage.
Prime considerations: The policy of the forum, F, as reflected in
judicial interpretation of the substantive rule applicable to the main
issue.
Decision: For the claimant, as a result of applying the policy of

the forum, as reflected in the substantive (domestic) rule of decision
relating to the principal issue in the case.
Example (b) Divorce/Family Law

Comparable situation: Wood v. Wood272
Facts: The court of the forum issues a maintenance order against
a "husband," requiring him to support his "wife." (These words
are used in the statute of the forum concerning maintenance.) The
husband leaves the forum, acquires a domicile in X and remarries
there. The husband, while visiting the forum, is sued by his first
wife for non-compliance with the terms of the maintenance order.
Considerations: The divorce is valid under the conflicts rules of
F. Its jurisprudence establishes that the word " wife " in the forum's
statute should be interpreted 'to include a former wife, the purpose
of the law being to guarantee support in justifiable circumstances,
whether or not the other spouse has remarried.
Prime Considerations: The policy of the forum as reflected in its
construction of the statute.
Decision: For a claimant, as a result of applying the forum's
domestic, not conflicts rule.273
Example (c) Marriage/Public (Criminal) Law

Comparable situation: Mohammed v. Knott 274
Facts: While domiciled in State X, a man marries a 12-year-old
girl. The marriage is valid under the laws of X. The couple move
272 This situation arose in Wood v. Wood [19571 P. 254.

273 The decision of the Court of Appeal in that case is the same as in this
model.
274 The facts are the same as those in Mohammed v. Knott [1969] 1 Q.B. 1.

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to the forum and live together as man and wife. The husband studies
in the forum but expects to return to his domicile after the com-
pletion of his studies. One year after the marriage, proceedings are
brought in F under a child protection statute to remove the wife on
the grounds that the child is not receiving care and protection as
described in the statute and, in particular, that the child is exposed
to moral danger. The child does not speak the language of the forum.
The court accepts that the husband is a "bad lot" and "had done
things in the past which perhaps nobody would approve of."
Considerations: The validity of a marriage involving a child which
is valid by the law of the domicile at the time of marriage is fully
recognised by the conflicts rule of the forum. The public policy of
the forum, as reflected in statute law, forbids marriage under the
age of 16 and, moreover, the policy of the forum is not to recognise
marriages if one of the parties is under 16 and domiciled in the
forum.
Prime considerations: The policy of the forum as reflected in its
statutory laws.
Decision: For the claimant, as a result of applying the policy of
the forum, as reflected in the substantive (domestic) rule of decision
relating to the principal issue in the case.275
Model Problem 2
Incidental question arising in the application of a foreign rule of

decision.
Tort/Family Law
Comparable situation: Masacco v. Schaaf 276
Facts: A husband and wife are domiciled in State C and the
husband is employed in State C. The husband is injured there w
at work, the couple later move to the State of the forum and
husband dies there. The wife sues her husband's employer in t
courts of the forum for wrongful death in State C. The marr
took place earlier in F where the couple were domiciled at t
time. The defendant maintains that the marriage was not valid
contracted under the laws of F.
Considerations: The marriage is not valid either under the con-
flicts rules of the forum or under the conflicts rules of C (the proper
law of the tort, the lex causae) both of which select the laws of the
275 Accord: Decision of the Inner London Area Justices in the case, reported at
[1969] 1 Q.B. 5-9; overruled in the Court of Appeal [1969] 1 Q.B. 1. See also
I. G. F. Karsten (1969) 32 M.L.R. 212, who appears to agree with the decision of
the Court of Appeal.
276 See n. 271 supra.

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domicile to determine the validity of the marriage. The m

also invalid under the domestic laws of the lex causae rela
marriage. But the foreign rule of decision applying to wr
death has been interpreted by the foreign court (C) as favo
claim of a female, dependent on and living with her partn
and wife, regardless of the validity of the marriage.
Prime considerations: The policy underlying the sub
(domestic) rule of decision of C, the lex causae, as interpr
the courts of that jurisdiction.
Decision: For the claimant, as a result of applying the p
the lex causae, as reflected in the substantive (domestic
decision relating to the principal issue in the case.
Model Problem 3

decision.
Comparable situation: Meisenhelder v. Chicago & N.W. Railways

Cos.277; Lanham v. Lanham 278; Re May's Estate 279
Tort/Family Law
Facts: As in model 2, a husband and wife are domiciled in and
the husband is employed in State C. The husband is injured there
while at work, the couple later move to F and the husband dies
there. The marriage took place earlier in State X where the parties
were not domiciled at the time. A rule of State C, the lex causae,
in the form of a statute, provides that "if a person residing and
intending to continue to reside in this state.., shall go into another
state... and there contract a marriage prohibited and declared void
by the laws of this state, such marriage shall be null and void for
all purposes... ." The marriage in question, being a first-cousin
marriage, while valid in State X, is prohibited in State C. The wife
brings an action in F under an Employers Liability Act in C, claim-
ing damages as a surviving wife.
Considerations: The marriage is valid by the conflicts rule of the
forum, F, and of the lex causae, C. It is void under the domestic
law of C, as set out in its statute.
Prime consideration: The public order of the lex causae.

Decision: Against the claimant, as a result of the application of a
statute reflecting the public order of the lex causae.280
277 Meisenhelder v. Chicago & N.W. Ry. Co., 170 Minn. 317, 213 N.W. 32 (1927).
278 Lanham v. Lanham, 136 Wise. 360, 117 N.W. 787 (1908).
279 Re May's Estate, 305 N.Y. 486 ,114 N.E. 2d 4 (1953).
280so In the Meisenhelder case (see n. 243 and text related to n. 247 supra) the

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Model Problem 4
Incidental question arising in the application of a domestic rule o

decision.
Succession to Land/Legitimacy
Comparable situation: Doe ex dem. Birtwhistle v. Vardill 281
Facts: The claimant maintains that he is entitled to succeed as
heir to land and titles situated in the forum on the intestacy of h
father who died domiciled in a foreign jurisdiction (S). The claiman
maintains that he was legitimate under the law of his parents
domicile and was entitled to succeed as heir under the lex
successionis (S).
Considerations: Under the conflicts rules of F and S, the claimant
was legitimate. Under the domestic rule of F, which is also the lex
situs, the plaintiff is not legitimate as he was not born in lawful
wedlock; a person can succeed as heir only if born in lawful wedlock.
Prime consideration: The policy of the forum as reflected in its
substantive rules of decision concerning heirs to land and titles.
Decision: Against the claimant, as a result of applying the sub-
stantive domestic rule of decision of the lex fori relating Ito the
main issue in the case.282
Model Problem 5
Incidental question arising in the application of a foreign rule

decision.
Succession to Land/Legitimacy
Facts: As in model problem 3, except that the testator is domiciled
in F and the land is situated in a foreign jurisdiction.
Considerations: The claimant is legitimate under the conflicts
rules of the forum (the lex successionis) as well as under the conflicts
rules of the lex situs, but is not legitimate under the domestic rules
of the lex situs because he was not born in lawful wedlock.
Prime Consideration: The principle of effectiveness. Succession to
land being involved, the courts of the forum would apply renvoi and
decision of the court was similar to this suggested decision. In Lanham v. Lanham,
a case in which the question of the validity of a marriage arose in the course of
interpreting a domestic rule of decision relating to succession, the court reached a
similar result. In re May's Estate (see supra, n. 279) which also involved the applica-
tion of a domestic rule of decision in a succession case, the forum interpreted its
policy differently and reached the opposite result.
281 (1840) 7 C.L. and Fin. 895.
282 The result in the Birtwhistle case (see n. 281, supra) was similar to that sug-
gested here.

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do what the courts of the lex situs would do, regardless of the
relevant rules of the testator's domicile.
Decision: Against the claimant, as a result of applying the sub-
stantive (domestic) rule of the lex situs relating to the main issue in
the case.
Model Problem 6
Incidental question arising in the application of a foreign rul

decision.
Tort/Family Law
Comparable situation: Emery v. Emery 283
Facts: A father and son, domiciled in X, are travelling in State C.
While on their way to a summer cottage, the son is injured in an
accident caused by the negligence of the father and the driver of a
second vehicle. The son brings an action in F for damages against
the father and the driver of the second car.
Considerations: According to the law of State C, the place where
the accident took place, a son cannot sue his father. The courts of
that State, if seized with the case, would regard the issue as relating
to the " tortness" of the tort, and would therefore dismiss the action
against the father. Under the law of the forum, the question of the
right of a member of a family to sue another is a matter of status
or family law and would be governed, under its conflicts rule, by the
law of their domicile. The courts of F would, moreover, characterise
the issue as one of family law, not tort.
Prime consideration: The policy of the forum, as reflected in its
characterisation rules, to submit matters relating to the family to
the law of their domicile.
Decision: For the claimant on the ground that the issue being
one of family law governed by the domicile, the conflicts rules of
the lex fori should apply.28s4
2s83 45 Cal. 2d 421, 289 P. 2d 280 (1955).

284 The result was similar in Emery v. Emery. A similar issue may arise in con-
nection with the right of a wife to sue her husband. See Gray v. Gray, 87 N.H. 82,
174 A. 508 (1934), where the court, however, reached the opposite result to that of
the model. A related problem can also arise in determining whether a cause of action
in a tort case survives the injured person's death. In Grant v. McAuliffe, 41 Cal. 2d
859, 264 P. 2d 944 (1952) the forum characterised the matter as procedural and
applied its own non-abatement rule, rather than the opposite approach taken by the
lex causae (place of the wrong). The reasoning is thus analogous to that applied in
this model. On the other hand, the characterisation of the lex causae was applied in
the similar case of Nelson v. Eckert, 231 Ark. 348, 329 S.W. 2d 426 (1959) and in
Traglio v. Harris, 104 Fed, 2d 439 (1939) which concerned the question whether the
contributing negligence of a son could be imputed to the father, the court applied
the lex causae, not the law relating to the status of the family; the reasoning is thus
not consistent with that of the model.

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Model Problem 7
decision.
Legitimacy / Succession
Comparable situation: Haque v. Haque 285; Re Johnson 286
Facts: A husband dies domiciled in State C (the lex causae) leav-
ing property in F. The husband, while domiciled in State C, entered
into a marriage in F which did not comply with the statutory require-
ments relating to the formal validity of a marriage. The claimant,
a child of the marriage, initiates an action in F, maintaining that he
is the legitimate child of the deceased and entitled to succeed on his
death in accordance with the rules of succession of State C.
Considerations: By the conflicts rules of the forum the marriage
is invalid and the claimant illegitimate. By the conflicts rules of the
law governing succession, the marriage conformed to the religious
laws of 'the testator and was validly entered into. If the conflicts rules
of the forum are ignored, there would be no consistency in the
treatment of the marriage; recognition will be given by F, for
certain purposes, to a polygamous marriage, which it would not
allow to form the basis of an action to uphold or sever the marriage.
On the other hand, if the conflicts rules of F are applied, there is
no uniformity of distribution of the deceased's estate; the law of
the testator's domicile, the law most closely associated with him and
which he might actually be assumed to have expected to apply,
would be ignored.
Prime Consideration: The uniform distribution of the estate, or
adopting the same decision which the court of the domicile would
have reached, being the State most closely connected with the
personal life of the deceased (analogy to renvoi).
Decision: For the claimant, as a result of applying the conflicts
rule of the lex causae.287
Model Problem 8
decision.
Adoption/Succession
Comparable situation: Anderson v. French 288; Moen v. Moen ""2
Facts: A testator dies domiciled in State C, leaving his property
285 108 C.L.R. 230 (1962), A.L.R. 34 (1964) and commentary in Nygh, op. cit.
supra, n. 16, at p. 278. 286 [1903] 1 Ch. 821.
287 The decisions in Haque v. Haque and Re Johnson were similar to the sug-
gested decision in this model. See as well, the dictum of Lord Green in Baindail v.
Baindail [1946] P. 122, at pp. 127-8. 288 (1915) 77 N.H. 509. 289 (1902) 16 S.D. 210

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to his children. One of his children was adopted years earlie

X, whose law of adoption created a status of legitimacy but
include a right of succession. Under the laws of C, adopted
have the same rights to succeed as natural born legitimate
The adopted son brings an action in the forum (F) agai
executors of the estate, claiming the right to be included
class of children to succeed.
Considerations: Under the law of F, adoption is governed by the

law of X, being the domicile of the father and son at the time of
adoption. The conflicts rules of C, the (lex successionis and lex
causae) would also look to X but the courts of C would interpret the
rule of succession to include adopted children, whatever the incidents
which State X would attach to the adoption. Consistency in deter-
mining the rights of an adopted child would require submission to
a single law which could not then be the lex successionis. Uniformity
in the distribution of the estate would, however, require that law
to be followed.
Prime Consideration: Adherence to the likely decision of the law

of the testator's domicile, the lex causae, in orler to produce uni-
formity of results in distribution (analogy to renvoi).
Decision: For the claimant, as a result of applying the domestic
rule of decision of the lex causae.290
Model Problem 9
Incidental question arising in the application of the rule of decisio

of the lex causae.
Legitimacy / Succession
Comparable situation: Re Annesley; Re Ross 29'
Facts: The testator dies domiciled in State X. The claimant, a
child legitimated by subsequent marriage, maintains he is entitled
to share in the property, which was willed to the "children" of th
testator. The law of F selects, as the proper law governing succes-
sion, the law of State X, the connecting factor in F's conflicts rule
being the testator's domicile. F applies the renvoi doctrine t
succession. The conflicts rule of State X employs a different con-
necting factor-that of nationality. Hence, the court of the State
290 The decision in Anderson v. French is consistent with this model. In Moen v.
Moen, the court again applied a domestic rule of decision and ignored the fact th
by the law (Norwegian) that would be selected by its conflicts rules there was no
valid recognition at the time.
291 Re Annesley [1926] Ch. 692; Re Ross [1930] Ch. 377.

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governing the main question (X) would transmit it to the lex

patriae; it applies the domestic law of C, the lex patriae, which thus
becomes the lex causae, so far as the succession is concerned. The
testator left property in all three States-F, X and C.
Considerations: If F's conflicts rules governing legitimation by
subsequent marriage were applied, the child would be legitimate.
The same result would follow under the conflicts rules of the trans-
mitting State (X). But under the rules of construction of the lex
patriae only children born in wedlock are regarded as being
included in the term "children."
Prime Consideration: The uniform distribution of the estate;

the application of the whole law of the foreign State selected by the
forum to govern the main issue, as being, in the opinion of the
forum, most closely associated with the testator.
Decision: Against the claimant as a result of adopting the inter-
pretation of a domestic rule of decision which the the courts of the
lex causae would make.
Model Problem 10
Incidental question arising in the application of the rule of

decision of the lex causae.
Legitimacy/Succession
Facts: As in model problem 9, except that F does not accept the
renvoi doctrine and would apply the domestic law of X, as the lex
causae, even though the courts of X would apply the law of State C
(the lex patriae).292
Considerations: Under the conflicts rule of State X the child is
legitimate, as he is under the conflicts rules of the forum. If the
child brings an action in State C, he will not be able to succeed
there. Hence, uniformity of distribution is impossible.
Prime Considerations: The presumed intention of the testator;
the policy of the forum in rejecting renvoi and applying the domestic
law of the domicile to the succession; presumably the supposition
that the testator, by identifying himself with the community of his
domicile, wished his succession to be governed by the canons of
distribution or laws of interpretation applying to the overwhelming
majority of estates within the jurisdiction. Or, alternatively, because
the problem is evaluated by the forum as belonging to the domicile,
this being the community with which the propositus was principally
concerned at the time of death.
292 See Gotlieb, op. cir. supra, n. 1, at pp. 547-548.

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Decision: For the claimant, as a result of rejecting the

doctrine and applying the domestic law governing the m
tion (X), and not the law State X would apply (that of C)
Model Problem 11

decision.
Marriage / Divorce
Comparable situation: R. v. Brentwood Superintendent Registrar of
Marriages 293
Facts: A husband and wife are married in State X. The couple are
then divorced in State X. At all material times the couple are
domiciled in State X. The husband is a national of State C. The
husband applies for a certificate of non-impediment to remarry in
F. State X, while having granted a valid divorce, does not consider
the husband free to remarry because it will apply the lex patriae,
C, to determine capacity to marry, and according to State C's law
the divorce was not valid.
Considerations: Under the law of the forum and the law govern-
ing the capacity to marry, the law of the domicile (X), the husband
has the capacity to remarry. F applies the renvoi doctrine and thus
looks to State C as the lex causae, whose law regards the husband as
a validly married man. Thus, there is no internal harmony within
State X on the status of the parties; there is indeed a conflict within
that system. Applying the whole law of the domicile leads the court
of the forum to inconsistency in its application of its conflicts rules
as to divorce. In this instance, it would apply the lex patriae; if the
divorce arose as a main question in the forum, it would apply the
lex domicilii. But the forum has no other special interest in
the situation since it was not the situs of the divorce.
Prime Considerations: The renvoi doctrine which requires the
court of the forum to look to ,the whole law of the domicile and not
just its domestic law to determine status; harmony of decision with
the husband's personal law; the contradictory situation prevailing
in the domicile being, nevertheless, the source of the actual con-
fusion about the status of the husband; the absence of any reason
for the "intrusion " of the lex fori into the decision. The prevention
of " forum shopping."
Decision: Against the applicant, as a result of applying the whole
law of the law of State X, the law governing the capacity of the
293 [1968] 2 Q.B. 956.

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parties to marry, which leads to recognising the incapacity of the

husband under C, the lex causae.294
Model Problem 12

decision.
Marriage / Divorce
Facts: As in model 11.
Considerations: Identical with model 11, except that F does not

accept the renvoi doctrine. Thus under the conflicts rules of F and
the domestic rules of C, the divorce is valid.
Prime Consideration: The international harmony of laws in so far
as the status of the husband is concerned.
Decision: For the applicant, as a result of applying the domestic
law of State X and ignoring its conflicts rules which would lead to
the selection of the law of State C.
Model Problem 13

decision.
Marriage / Divorce
Facts: As in model 11, except that the divorce took place in F
when the couple previously had established a domicile there (that
domicile now being lost).
Considerations: As in problem 12. However, if F selects the con-
flicts rules of the lex causae to apply to the validity of the divorce,
the result will be that it does not recognise the validity of a divorce
which it has itself granted. Applying the conflicts rules of C would
thus lead to inconsistency not only in the application of its own
laws but in how it treats its own divorce decree. But ignoring the
conflicts rules of the lex causae would be tantamount to ignoring
the status that the petitioner has under the law of his own domicile.
Domestic law often distinguishes between a status and its incidents.
However, to grant a divorce and then not recognise it goes beyond
distinguishing between a status and its incidents; it constitutes a
wholly inconsistent result.
Prime Considerations: Consistency of treatment of a divorce
decree within the forum, notwithstanding the resulting lack of
harmony with the law of the domicile; application of principle of
estoppel whereby a person is precluded from asking the court to
294 The results in the Brentwood case are similar to that in the model.

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declare a status and then deny the status295; justifica

"intrusion" of the lex fori.
Decision: Recognition of the celibacy of the petitione
result of applying the conflicts rules of the forum.296
Model Problem 14

decision.
Marriage / Divorce
Comparable situation: Schwebel v. Ungar 297; Padolecchia v.
Padolecchia 298
Facts: A husband and wife are domiciled in State X. While en

route to State C, where they intend to live, they obtain a divorce in
State Z. The divorce is not valid by the law of State X where they
were still domiciled at the time of the divorce. It was, however, valid
by the law of State C, because it was a religious divorce and was
legally conducted according to the religious law of the parties. The
couple remain domiciled in State C and the wife, while still
domiciled there, travels to F and marries her second husband there.
The wife then petitions in the courts of F to annul the marriage on
the grounds of her incapacity to marry due to the invalidity of the
divorce.
Considerations: The divorce is void according to the conflicts
rules of the forum (which would apply the law of X). But according
to the law governing the main question, the validity of the marriage
(the law of State C), the divorce was valid. Applying the conflicts
rule of State C would be inconsistent with the application of the
conflicts rule governing divorce existing in F. The consistency of
the internal law of the forum could be impaired if the forum's
conflicts rules are ignored. The court of the forum would seem in
such circumstances to be applying the policy of a foreign jurisdiction.
Prime Considerations: The international harmony of decisions;
the principle of determining status by the law of the domicile, not
of the forum; the principle of estoppel, the wife in this situation
asking a court to undo a situation of her own deliberate making.
295 (1961) 25 D.L.R. (2d) 595.

296 Contra: Prisident des Hanseatischen Oberlandesgerichts zu Hamburg, Decision
of Aug. 5, 1955, French translation [1957] R.C.D.I.P. 50; also, Decision of Swiss
Federal Tribunal of Nov. 11, 1954 [1957] R.C.D.I.P. 52; Dame Petrone c. Petrone,
Tribunal de la Seine, June 2, 1942 (1943) Nouvelle revue de droit international privd
117. However, the Tribunal de la Seine reached a similar decision to that suggested
above in Sciachi v. Sciachi, Tribunal de la Seine (Mar. 17, 1948), 37 R.C.D.I.P. 112.
297 (1963) 42 D.L.R. (2d) 622; (1964) 48 D.L.R. (2d) 644.
298 [1968] P. 314.

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Decision: Against the petitioner, as a result of applying the lex

causae (C) which regarded the divorce as valid.299
Model Problem 15
Incidental question arising in the application of a domestic rule o

decision.
Marriage/Divorce
Facts: As in model 13, except that the husband subsequently
acquires a domicile in F and asks for a declaration as to his marital
status.300
Considerations: The main question is the status of the petitioner,
i.e. his capacity to marry. This depends upon the validity of the
previous divorce. The conflicts rule of the law governing the main
question, F, selects the law of the domicile at the time of the
divorce (X) which does not recognise the religious divorce. As no
connecting factor in either the law of F or X takes the court to the
law of C, the subsequent matrimonial domicile which recognises
religious divorces, there is no apparent conflict of laws to reconcile.
But uniformity of the substantive result in the forum is sacrificed:
the wife was free to marry in F (see model 14); the husband, after
acquiring a domicile, is not. Uniformity of decision within the forum
can only be achieved by modifying the conflicts rule of the forum
to take account of the juridical regime of the subsequent domicile.
Prime Consideration: The avoidance of unfairness or an absurd
inconsistency.
Decision: In favour of the claimant's celibacy, as a result of the
judge of the forum exercising a "creative " role and modifying the
conflicts rule of the forum in such circumstances to take account of
the status achieved in a subsequent matrimonial domicile.
Model Problem 16

decision.
Marriage / Divorce/Succession
Facts: A husband and wife are domiciled in X and married there.
Subsequently the couple, while still domiciled in X, obtain a divorce
299 The decisions in Schwebel v. Ungar and Padolecchia v. Padolecchia were

similar to that in the model.
300 This and other hypothetical cases are posed by Cheshire, op. cit. supra, n. 54,
at p. 56, by Nygh, op. cit. supra, n. 16, at p. 278, and Lysk, op. cit. supra, n. 257, at
pp. 378-379, to question the validity of the Supreme Court of Canada's decision in
Schwebel v. Ungar.

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there. The husband, still domiciled in X, marries his second

wife there. The husband moves to C, obtains a domicile and dies
there, intestate. He leaves moveables in States F, X and C. Under
the conflict rules of C, the lex successionis or law governing the
main question, the divorce is not valid. The first wife initiates pro-
ceedings in State F claiming a share in the estate as the surviving
spouse. Evidence is introduced that the testator did not live with
either his first or second wife after his move to his final domicile.
Considerations: The conflicts rules of F would select the lex
domicilii at the time of the divorce to determine the validity o
divorce and would therefore regard it as valid. Failure to apply
lex domicilii at the time of divorce will introduce a potential la
consistency in the application of the conflicts rules of the fo
depending on whether the question of divorce comes up as an
incidental or principal question. However, the lex causae, C, treats
the first marriage as valid and the second marriage as void. To
apply the lex causae is to validate a relationship legally terminated
by the conflicts rule of the forum and the will of the intestate.
However, to ignore the conflicts rules of the domicile at the time of
the intestate's death is to ignore the provisions of the law most
closely associated with the testator at the time of his death, to
disregard the presumed intention of the testator to allow his estate
to devolve in accordance with the law of his domicile and to distri-
bute the estate differently depending on where the goods are to be
found.
Prime Considerations: The uniform distribution of the estate;
harmony between decisions of the forum and the decisions, potential
and actual, of the jurisdiction most intimately concerned with the
intestate at the time of his death; no special reason for the lex fori
to "intrude" into the case.
Decision: For the first wife, as a result of the application of the
lex causae.
Model Problem 17
Incidental question arising in the application of the foreign rule

decision.
Marriage / Divorce/Succession
Comparable situation: Loupetis v. Quemener, and various other
continental cases 301
Facts: As in model 16, except that evidence is introduced that the

second wife and her husband lived together as man and wife in
301ol See nn. 268-269, supra, for cases and references.

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State C, the last domicile of the intestate, that the husband had
severed all connection for many years with the first wife, and that
the first wife had remarried and was in no financial need.
Considerations: As in model 16, except that there is a strong
reason in equity for the forum not to apply the lex successionis
which would deny the right of the second wife to succeed to the
estate.
Prime Considerations: Fairness and equity of the law of the

forum, notwithstanding the absence of juridical factors justifying
the intrusion of the public policy of the forum, and notwithstanding
the implications for international uniformity in the distribution of
the estate.
Decision: For the second wife, as a result of the application of
the conflicts rules of the lex fori to the incidental question, uphold-
ing the validity of the second marriage, based on the perception of
the courts of the forum that fairness and equity require application
of the forum law and not the lex causae, notwithstanding the result-
ant lack of uniformity in the distribution of the intestate's estate.
Model Problem 18
Facts: As in model 16 (no circumstances involving special con-

siderations of equity) except that the divorce decree was pronounced
in the forum while the couple were domiciled there.
Considerations: The pronouncement of a divorce decree in the
forum suggests that the forum should respect its own decree. But
the forum distinguishes between status and its incidents. Thus, the
granting of dissolution to a marriage and recognising the right of
the former spouse to succeed as a "wife" to goods within the forum
of an intestate domiciled abroad are not totally inconsistent with
the way status is treated under that law. While there is admittedly
some inconsistency in the forum, the divorce decree is still valid for
other purposes. Moreover, to disregard the fact that the divorce is
void under the conflicts rules of the lex causae would be to contri-
bute to the lack of international harmony in the distribution of the
estate. The forum has ample reason to "intrude" into the decision of
the lex causae, producing a "mixed" solution (part application
of foreign law and part application of forum law) but the interest
of the forum has to be balanced against the desirability of inter-
national harmony among the potential jurisdictions seized with the
intestate's estate.
Prime Considerations: The need to respect the law with which the
intestate was most closely associated at the time of his death;

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adherence to renvoi principle; promotion of uniformit

distribution of the estate.
Decision: For the first wife, as a result of applying the lex causae,
notwithstanding the validity of the divorce in the forum.302
Model Problem 19
Incidental question arising in the application of a foreign r

decision.
Marriage / Divorce / Succession

Facts: As in model 16, except that the husband and wife lived
together in State C, the last domicile of the testator, and the husband
had severed all connection with the first wife (as in model 17) and
the divorce took place in the forum.
Considerations: As in model 17.
Prime Consideration: Equity, as in model 17.

Decision: For the second wife as a result of the application o
the conflicts rule of the forum to the incidental question (as
model 17).
VIII. CONCLUSIONS
The conclusions to be drawn from the account of various model

problems and prime considerations that may be brought to bear in
their solution is that in every case where there is an incidental
question, the specific facts must be looked to and an evaluation made
of a wide variety of factors that can influence the result. As we
have seen, these factors include the policy of the forum, the notion
of public order, the need for consistency among decisions of the
forum, the interpretation of the forum's statutes and substantive
law, the policies and public order of the foreign State or States con-
cerned in an issue, the construction of the foreign laws, the desire to
avoid forum-shopping, the purpose behind the potentially applicable
choice-of-law rules, the need to promote international harmony in
the decision of various courts involved in a problem, the doctrine
of renvoi and fairness and equity. It is clearly impossible to say that
as a general rule priority should be given to any one or any com-
bination of these factors since an evaluation of their importance
or relevance will most certainly differ in different circumstances. At
the same time, one can discern certain patterns of facts or types of
circumstances which tend to appear, from time to 'time, in the actual
o302 Contra: Dicey and Morris, op. cit. supra, n. 6, at p. 38; Wolff, op. cit. supra,
n. 7, at p. 210. Accord; dictum of Kalrminski J. in Breen v. Breen [1964] P. 144.
26 I.C.L.Q.--4

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cases. The methodology suggested in this study is to identify the

model or general prototype of the problem and to evaluate the
various considerations, so as to determine which are the leading or
prime ones. The models do exist, but they are greatly affected, as it
has been shown, by the particular circumstances of the case. No
better illustration can be found of the uncertainty of the outcome of
the search for an answer to an incidental question than the type of
problem which began this article and closes it-the husband who,
as a result of different divorce laws, has different wives in different
jurisdictions. The analysis does, it is submitted, establish beyond
doubt that "1[t]here is really no problem of 'the incidental question,'
but as many problems as there are cases in which incidental questions
may arise."

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Incidental Questions Revisited

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Incidental Questions Revisited

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The Incidental Question Revisited: Theory and Practice in the Conflict of Laws

Stable URL: https://www.jstor.org/stable/758934

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IN an article on the subject 21 years ago, I wrote that "In r

* Under-Secretary of State for External Affairs of Canada; formerly Fel

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and family relations. The mobility of individuals in contem

4 See infra, section IV.

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II. WHAT IS AN INCIDENTAL QUESTION?

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The question arises in the proceedings whether the wife r

8 See Dicey and Morris, op. cit. supra, n. 6, p. 35.

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It is an oversimplication to say that a "true" incidental question

III. SUMMARY OF RECENT ATTITUDES TO THE PROBLEM

Notwithstanding the strong and widespread scholarly interest and

9 See Gotlieb, loc. cit. supra, n. 1, pp. 527-528.

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observations." 13 Writing a few years later, an American auth

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determination of incidental questions, broadly understood, as a

IV. SOME CAUSES OF CONFUSION AND MISUNDERSTANDING

Professor de Nova may, indeed, be forgiven, and this for several

(1) The Abstract Quality of the Writing

Conflictu Legum (1962), p. 209; Bouchaert, "La question prcalab

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bution to the subject, Nouvelles rdflexions sur les questions

(2) Differing Descriptions and Terminological Confusion

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dental question" and, in fact, arguments have been advanced there

44 Op. cit. supra, n. 21, p. 214 (my translation).

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(3) Conflicting Areas of Application

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regarded as those arising where the lex causae is not the la

(4) The Incidental Question as a Matter of Interpretatio

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e6 See discussion in Kegel, op. cit. supra, n. 20, pp. 204-205.

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Currie's contribution succeeds in its purpose; if the latter

(5) The Introduction of New Terms or Concepts

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70 Op. cit. supra, n. 51, p. 392. 71 Kay, 53 Cal.L.R. 47 (1965).

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flicts rules? 76 If it is a datum, the rule may be applied or it may

(6) Other Factors Contributing to Lack of Clarity

76 See Lipstein, op. cit. supra, n. 33, at p. 95.

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(a) Relationship in time

(b) Relation in concept

s8 De Nova, op. cit. supra, n. 21, at pp. 564-566.

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arises only in applying the rule of that foreign system, the re

(c) Relationship in application

The large number of authors who have addressed themselv

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82 Van Hoogstraten, de Nova, Ehrenzweig.

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a matter of personal inclination of the individual commentator, rather

While it is certainly possible to engage in speculation about

s5 Ibid. 8 Op. cit. supra, n. 21, at p. 467, n. 3.

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