CLASSIFICATION AND

CHARACTERISATION
lex loci actus-the law of the country in which a transaction is performed, a tort is
committed, or a property is situated.

Lex fori- The term 'lex fori' refers to the law of the jurisdiction or authority seized with a
case

Lex causae- is the law chosen by the forum court from the relevant legal systems when it
judges an international or interjurisdictional case. 

lex loci contractus- law of the place where the contract is made.

Lex loci celebrationis-the law of the land where the marriage was celebrated

Lex loci deliciti- law of the place where the delict [tort] was committed
lex domicilii- law of the country of domicile

Lex fori- law of the forum, the law in force in the court hearing the dispute

Lex situs: law of the place where the property is situated

Lex patriae: law of the nationality of the person

Lex loci solutionis: law of the place where the contract was to be performed or debt
paid

Propositus: The person whose rights and obligations are being considered
Litigation can be divided into two categories:

The first case involves operative facts and issues which are connected with only that
legislative jurisdiction in which the court sits and the court simply applies the law of the
forum.

The second category-the conflict of laws case-involves operative facts and issues some of
which are connected with legislative jurisdictions other than that of the forum.

In this type of case no one system of positive law regulates the entire situation.
The court might either decide arbitrarily without reference to any system of law, or apply its
own law exclusively, or refer the matter to the system of law with which the case seems to
have the closest association.

This last course is the one to be followed.

This reference can being accomplished through the application of a conflicts rule, i.e., a rule
of the forum by which the issue as defined is referred to a certain law by means of a
connecting factor or place element.

Thus, capacity to marry may be referred to the law of the domicile; succession to an
immovable may be referred to the law of its situs.
It has been pointed out that the same case might be decided differently in different states because
of the conflicts which might exist in the conflicts rules of the states concerned.

The conflicts rules themselves might be patently different, example: the capacity to marry is
referred by one state to the party's domiciliary law and by another state to his national law.

The conflicts rules may be apparently the same, but actually different because different meanings
may be given to the connecting factor in each state, as where domicile is the connecting factor in
each state, but one method of determining domicile does not correspond to the other.

The conflicts rules may be apparently the same in each state, with the connecting factors the
same in content, but the issue not defined in the same manner in each state, example where the
necessity of parental consent is legally defined as a question of capacity in one state and as a
question of form in another.
In cases having a foreign element, the courts will have to determine whether they have
jurisdiction over the parties and the cause of action.

After doing so, the courts next move on to determine the juridicial nature of the questions
that have to be determined.

EX- Whether the question if of breach of contract or the commission of a tort.

This determination is important to move ahead with the adjudication of the case.

In order to determine the appropriate rule for choice of law, and thus the applicable law, this
classification has to be done by the courts.

After doing this, the courts must select the legal system that governs the matter.
Characterisation is the second stage of the procedure to resolve a lawsuit that involves
foreign law.

The process is described in English law as Characterisation, or classification within the

English judgments of the European Court of Justice.

It is also alternatively known as qualification in French law.

The objective of characterisation is to determine the nature of the action brought by the
defendant in order to determine what relevant rules of applicable law apply.

This may result in applying laws which differ from the lex fori. 
Conflicts rule have the same binding force as a rule of internal law and must be applied in the manner
in which the sovereign understands it.

It is not such a law that will dispose of the issue, but is a rule of reference, one which will refer the
issue to a certain law, local or foreign, for determination; an "indicative" rather than a "dispositive"
rule.“

Therefore, the juridical definition or characterization of the issue must be known before the conflicts
rule can be selected and the law referred to applied.

In the words of Falconbridge, the solution of a conflicts case requires the characterization of the issue,
selection of the law to be applied by means of the conflicts rule, and application of the law selected.
Each state having its own concepts and institutions which cannot be expected to be the same in other
states, the characterizations of one state will not necessarily conform to those of another, and therefore
it is vain to expect uniformity of result for similar conflict cases in different courts.
Thus, any court that assumes jurisdiction over the case will have to find a reference to the
factual situation that gives rise to a legal question.

There are some well recognised rules of private international law:

Capacity to marry governed by lex domicile (a predominant view in common law countries)

Formalities to be governed by lex loci celebrationis or lex loci contractus

Immovable to be governed by lex situs

But this necessitaes for the court to determine what is meant by capacity, formalities and
immovable property
Ogden v. Ogden

A minor Frenchman had married an Englishwoman in England without previously obtaining

the consent of his parents as required by French law.

An English court considered the French requirement a matter of formalities and applied the
English conflicts rule that formalities are governed by the law of the place of celebration
(England).

The court found the French law inapplicable and upheld the validity of the marriage.

Shortly before, a French court had to decide on the validity of the same marriage. Defining
the necessity of parental consent as a question of capacity to marry, the French court applied
the French conflicts rule that such capacity is governed by the party's national (French) law,
and declared the marriage null.
In Re Martin, Loustalan v. Loustalan ([1900] P. 211.) the court observed two questions to be determined by it,
first whether the factual situation falls naturally within this or that judicial category, secondly it may be a case
where English law and the relevant foreign law hold diametrically opposed views on the correct classification.

There may, in other words, be a conflict of classification, as, for instance, where the question whether a will is
revoked by marriage may be regarded by the forum as a question of matrimonial law, but by the foreign legal
system as a testamentary matter.

The above mentioned two difficulties are well illustrated in the Maltese Marriage case (Anton v. Bartolo,
(1891)

In this case a husband and wife, who were domiciled in Malta at the time of their marriage, acquired a French
domicile. The husband bought land in France. After his death his widow brought an action in France claiming
a usufruct in one quarter of this land. There was uniformity in the rules for the choice of law of both
countries: succession to land was governed by the law of the situs, but matrimonial rights were dependent on
the law of the domicile at the time of the marriage.
Therefore, the first essential was to decide whether the facts raised a question of succession to land or
of matrimonial rights. At this point, however, a conflict of classification emerged.

In the French view the facts raised a question of succession; in the Maltese view a question of
matrimonial rights.

When a conflict of this nature arises it is apparent that, if a court applied its own rule of classification,
the ultimate decision on the merits will vary with the country in which the action is brought.

However, French law classified the issue as one of succession whereas Maltese law saw it as
matrimonial property.

Under Maltese law such a claim was recognized, but it was not under French-Algerian law.

In the event the court applied Maltese law.

The problem of characterization or classification of the choice of law, as stated above, arises
because often a particular relationship, situation or an institution is characterized in one way in
one country and in a different way in another county.

This tendency of the courts of different countries of characterizing the same factual situation, the
same legal relationship or the same institution in diverse categories has often led to grotesque
results.

Thus, it is pertinent to determine the law according to which the court is going to characterize the
factual situation so as to reach a socially desirable and just result because unless the court
determines what is meant by capacity, formalities or immovable property, it would be almost
impossible for the court to proceed with the case.
In Re Cohn, a mother and daughter both domiciled in Germany but residing in England were
killed in an air raid on London under circumstances rendering it uncertain which of them
survived the other.

The daughter was entitled to movables under her mother's will only if she survived her
mother. By the English conflict rule, succession to movables is governed by the law of the
domicile, procedure is governed by the lex fori.

By section 184 of the Law of Property Act 1925, the presumption was that the elder died first
but by article 20 of the German Civil Code, the presumption was that deaths were
simultaneous.