Topic 9: Choice of Law Rules for Property and Succession
Property
▪ IPL purposes: classification as moveable or immoveable, determined by IPL rules of lex situs
▪ Choice of Law rule for immoveable property: lex situs
▪ Choice of Law rule for moveable property: determined through operation of certain
connecting factors
▪ Re Hoyles (1911)
“our international comity and in order to arrive at a common basis on which to determine questions
between the inhabitants of two countries living under different systems of jurisprudence, our Courts
recognise and act on a division otherwise unknown to our law into movable and immovable.”
▪ MacDonald v MacDonald (1932)
Immoveable Property
▪ Jurisdiction: if civil and commercial matter, Brussels Ibis Article 24(1): no longer applies
remember. So, revert to Rule 2(h) or (k) of Schedule 8 to 1982 Act
▪ Choice of Law: lex situs
▪ Capacity: lex situs
▪ Ogillvy, Black, Bank of Africa
▪ Capacity of foreign trustees to dispose of or create security over heritable property
in Scotland: Allans Trustees and Trusts (Scotland) Act 1921 s.4 (Scottish trustees
only); Pender; Harris’ Trustees; Prudential Assurance Co.
▪ Formalities generally: law applicable which is connected to the making of the contract: Rome
I Regulation Article 11 and 11(5) or common law if not in scope of Rome I Regulation:
Hamilton v Wakefield
▪ Formal validity of conveyance of land: lex situs applies. Adams v Clutterbuck. Practical
example: Lorna’s house sale in Leicestershire, sale contract to meet formal requirements of
English law.
▪ Essential validity generally: applicable law and conformity with lex situs eg Carse v Coppen
Moveable Property
▪ Former rule: transfer of moveable property subject to law of domicile of owner NOW
ABANDONED per Bank voor Handel case
▪ Favoured rule: law where property is situated – justified or an over-simplified rule?
▪ Can sub-divide choice of law rule for corporeal and incorporeal moveable property
Property
▪ IPL purposes: classification as moveable or immoveable, determined by IPL rules of lex situs
▪ Choice of Law rule for immoveable property: lex situs
▪ Choice of Law rule for moveable property: determined through operation of certain
connecting factors
▪ Re Hoyles (1911)
“our international comity and in order to arrive at a common basis on which to determine questions
between the inhabitants of two countries living under different systems of jurisprudence, our Courts
recognise and act on a division otherwise unknown to our law into movable and immovable.”
▪ MacDonald v MacDonald (1932)
Immoveable Property
▪ Jurisdiction: if civil and commercial matter, Brussels Ibis Article 24(1): no longer applies
remember. So, revert to Rule 2(h) or (k) of Schedule 8 to 1982 Act
▪ Choice of Law: lex situs
▪ Capacity: lex situs
▪ Ogillvy, Black, Bank of Africa
▪ Capacity of foreign trustees to dispose of or create security over heritable property
in Scotland: Allans Trustees and Trusts (Scotland) Act 1921 s.4 (Scottish trustees
only); Pender; Harris’ Trustees; Prudential Assurance Co.
▪ Formalities generally: law applicable which is connected to the making of the contract: Rome
I Regulation Article 11 and 11(5) or common law if not in scope of Rome I Regulation:
Hamilton v Wakefield
▪ Formal validity of conveyance of land: lex situs applies. Adams v Clutterbuck. Practical
example: Lorna’s house sale in Leicestershire, sale contract to meet formal requirements of
English law.
▪ Essential validity generally: applicable law and conformity with lex situs eg Carse v Coppen
Moveable Property
▪ Former rule: transfer of moveable property subject to law of domicile of owner NOW
ABANDONED per Bank voor Handel case
▪ Favoured rule: law where property is situated – justified or an over-simplified rule?
▪ Can sub-divide choice of law rule for corporeal and incorporeal moveable property
