Editorial Committee of the Cambridge Law Journal

Equity, Rights in Rem and the Brussels Convention Author(s): Pippa Rogerson Reviewed work(s): Source: The Cambridge Law Journal, Vol. 53, No. 3 (Nov., 1994), pp. 462-464 Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge Law Journal Stable URL: http://www.jstor.org/stable/4507985 . Accessed: 10/11/2011 02:25
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The ECJ followed Reichert v. However.C. he purchased then furnished clearance name.R. It was not a case of the father asserting a right good against all the world but seeking to acquire a right only the English courts could determine the against his son. Andrew Bainham equity. The issue for determination whether the father could rebut the presumption of advancement so that the son held as trustee for him under a resulting trust. these proceedings had been property" it is not was carefully framed as a matter of trust. 801 was the English court's jurisdiction to adjudicate this dispute which really the ownership concerned of a flat in France. The son argued that the action was not in rem but in personam.L. it and control his son's it.. I. Webb [1994] 3 W. favour of the French court.462 The Cambridge Law Journal [1994] local authority to control any attempted exercise of that responsibility be but there will undoubtedly by the father (under section 33(3)(b)) those who will feel that a murderer. However. should not have it at all. Mr. Therefore. submission to another court (Articles 18 and 19) and it excludes the of the courts of the defendant's domicile. but the homely virtues of respect and gratitude may be in short supply. Dresdner Bank [1990] E. The father would then be entitled under the rule in Saunders v. 27 to hold that . Q. At first sight. rights in rem and the brussels convention The Webbs are clearly a family not lacking for money. the Court of Appeal and the European Court all agreed with this analysis. Both father and son were resident in England so the father took his grievance to the that he was entitled to the flat English court. matter.CR. it jurisdiction would seem obvious that the fundamental question was: who owned the flat? That would be an issue in rem and so fall within Article 16(1). asking for a declaration as beneficiary under a resulting trust and an order that his son should do all in his power to transfer the title to the flat to him. Vautier to require the son to transfer the legal title to him. The preliminary issue in Webb v. as the father now wished to have the property registered in his name. the English court would have had to decline jurisdiction in Therefore. Webb had a flat in Antibes in France for a large sum of money. With unusual harmony Paul Baker. Article 16(1) of the Brussels Convention confers jurisdiction on the court of the situs where the proceedings "have as their object rights in rem in immovable in a Contracting State. This jurisdiction is so exclusive that to oust it by contract nor by (Article possible 17(4)). or other serious abuser. maintained to obtain exchange from the Bank of England he had bought the flat in One imagines that they quarrelled.

these proceedings. it explicit. one can agree that the interest is asserted in personam. based on a right in No court made tion of the issue. A uniform concept of in rem actions within the Convention must be adopted for all of irreconcilable possibility States so as to reduce the If the pleadings are drafted judgments. Also. In contrast. in the traditional manner of an equitable interest being good Analysed and purchasers with notice of the only against the trustee. the right appears to be more one in rem. unless the distinction decision on the substantive property that is unacceptable enforce there. A firm distinction now must be drawn between for questions characterisation of jurisdiction under the Convention and that adopted for choice of law. the English courts have long characterised actions about foreign land as concerning trusts the equivalent law rule to Article 16(1) so as to circumvent common Penn v. is allocated with the claim expressed as being in personam. To a civil lawyer the distinction between in rem and in personam rights is clear. Is Webb v. Lord Baltimore (1750) 1 Ves. Case and Comment 463 immovable although involving property. Would a French court enforce the English judgment by effecting a transfer of the title to the father? After the decision of the ECJ the French courts could not rely . Most matters Contracting concerning English land. The substantive issue concerning French immovable to the French courts and impossible to issue in Webb v. Webb was decided at it as a matter of trust and this was not first instance by characterising appealed. volunteers equitable right. jurisdiction under the usual rules and Article 16(1) is inapplicable. English domestic law is not confident about the exact nature of an interest under a trust.L. can therefore be decided in the French courts as they will be actions in it is important to note that it was only the However. In the alternative that equitable interests are good against recitation all the world except equity's darling. the danger is is made. Article 16(1) requires a court to decide whether the action involving immovable property is in rem to determine the court's jurisdiction. maxim that equity acts in personam is liberally made use of in these cases. Sen. characterisation of the issue for one purpose will suffice for the other.C. Normally. If the son remains obdurate the father will ultimately have to ask the French courts for enforcement. However. were not rem and Article 16(1) did not apply. the English court may come to a that.J. apart from actions to rectify the register. However. The distinction is rarely crucial as in most domestic cases even a right in rem will be asserted in personam. but the point concerned the characterisaThis normally arises in deciding on the relevant choice of law rule. Webb therefore cbrrect? The definition ofa common concept of in rem rights for jurisdiction is welcome. personam. 444). The (for example. of jurisdiction matter of the allocation within Contracting preliminary States that was in issue.

doubt no these remedieswould have been requested and this would have indicated moreclearly proprietary the nature thedispute. of neither would have beenappropriate sincethe flatwasin France.at the of as choiceof law stageit wouldhaveto re-characterise issueas one the concerning property. a RacalGroup Services v. thoughtmightnot be sound. Ashmore Ltd. to the The actionwas between fatherand son alone. [1994] S. series annual a of payments . Hadthe flatbeenin England.T.always riskof taximplications.464 TheCambridge Journal Law [1994] on Article to refuse enforce English 28 to the judgment. illustrates thefirstsolution notworkunless 416 that does therehas beena clearfailureof the document recordthe terms to agreed. if theEnglish Even courthascharacterised the issuefor the purposes jurisdiction one of trust. pointis long established. as in thiscase. might. 660 and a raft of other Act provisions. the The case concerned attemptby Racal (R) to make a taxan deductible in favour charity. Nevertheless.Thanksto the Incomeand Corporation 1988s. making R on sucha payment. PIPPA ROGERSON DEEDS COVENANT OF EQUITABLE REMEDY RECTIFICATION OF IF two parties execute document achieve particular a to a resultand theresult notachieved cantheparties about Onesolution is what do it? is to go to courtandaskforrectification thefirst of document. formchosen whatthe tax gift of the was legislationcalls "a covenanted paymentto charity". the characterisation determination thesubstantive as one and of issue of trust(littleknownin France) rather thanas property cause may somedifficulties.Of and coursethis raisesthe question why anyonewouldstill wishto seek rectification the firstdocument of aftercompletion the secondbut of oftenrights mayturnon theprecise fromwhich date theyarecreated andthereis. case also showsthat the this The secondsolutionmay inhibitthe first.so presenting the courtwithan easydecision.amongst had other things.C. deduct retain and a sum equalto the basicrateof incometax. another is to execute newdocument.a point whichis not always appreciated whichVinelottJ. if he had becomebankrupt? or Such questions clearly are proprietary substance mustbe referred in and to thelex sitas fordetermination. French The courtmightbe tempted usetheordre to publicprovision (Article 27(1))to refuse recognise jlldgment. R's rightto deductto For arisethere to be. father notask for a vesting The did order norforrectification theregister. the charitycould then reclaim tax fromthe Inland the Revenue. make of To the caseharder: whatif theson hadhada wifewhowasclaiming the flat as matrimonial property.