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Conflicts Supervision 8 (Property - Ch. 12, Rogerson)
Step 1 - Characterisation
Contract, tort or property?
- Rome I Regulation
- Look at whether B has paid/whether bicycle is suitable for its purpose
- Seller owns the bicycle: implied term in English domestic law (Sale of Goods Act 1979, s12)
When buyer is asserting that because of sale to buyer, seller has no title to transfer to anyone else (i.e. buyer is claiming bicycle itself) ?
E.g. Kuwait Airways Corp v Iraqi Airways Co
- Facts: Ds had possession of 10 aircrafts which were taken from claimants by Iraqi forces during first Gulf War. Some aircrafts were damaged/destroyed when they were returned.Claimants: Wanted delivery up of aircraft/recover damages for wrongful interference with claimants' property/ value of aircraft.Defendants: relied on Iraqi law; asserted good title to aircraft,
Resolution of Iraqi Council gave them aircraft so claimants no longer owned aircraft, can't claim in tort for damage.
Central issue of determination: property issue - did Iraqi
Resolution give title to aircraft to D thereby defeating claim in tort?
Where property has been requisitioned or nationalised by state/dealt with by court as part of execution of judgment
- Involuntary transfer
- Consider different factors, particularly public policy reasons
Property: personalty and realty
- Distinction is not the same distinction as in domestic law
- Categorisation largely depends on physical characteristics of property
- If unclear, apply lex situsVoluntary or involuntary?
Movable or immovable?
Immovables: land in England, all interests in land (including leases)
NB Leases are personalty in domestic law (Freke v Lord Carbery)
Tangible or intangible?
Property abroad: characterised as immovable or movable according to lex situs
Factual - property is either factual or it isn't factual.
- Tangibles: e.g. bicycle, painting
Exception: share certificates evidence of ownership,
physical possession of certificate is enough to have complete title of share
- Intangibles: sum in credit, debts, patents, shares, etc
Williams v Colonial Bank
C of A: distinction should be drawn between possession of certificates and ownership of shares Conflicts Supervision 8 (Property - Ch. 12, Rogerson)Law of England determined ownership of physical share certificates in a NY company
But did not determine effect of possession of certificates as matter of any rights against the company
What governs effect of possession of certificate?
- For law governing existence of share/debt
- Law of incorporation determines questions of membership of company - what rights are given to members/how title can pass
Step 2 - Immovables
Court must decide whether it has jurisdiction, before deciding what the choice of law rule for property questions over foreign immovable property might be.
Art 22: English court cannot take jurisdiction over proceedings, which have as their object a right in rem in immovable property located in another MS.
National rules: English court does not have jurisdiction over question of title to foreign immovable property located in third state.
British South Africa Co v Companhia de Mocambique: H of L, held, it did not have jurisdiction in an action for trespass to land in Africa. Cannot decide an action of title nor one for possession for foreign land.
Hesperides Hotels v Aegean Turkish Holidays: H of L, refused to hear an action in respect of an alleged conspiracy made in England to trespass in hotel in Cyprus.
Exceptions to rule
Civil Jurisdiction and Judgments
Act 1982, s30
Modified Mocambique rule.
- Actions for trespass or other torts affecting immovable property situated outside England/EU can be heard in
- Rare still for English court to exercise its discretion to decide dispute
- Applicable law: foreign law
If will/trust concerns in whole or in part with foreign land,
question of title thereto arises incidentally.
English court can act upon person of the trustee or personal representative
English courts can act in personam upon a defendant within jurisdiction to enforce personal obligation, incumbent upon D
when subject matter is land abroad.Equitable jurisdiction in personamMakes decree of specific performance against D
D is in contempt of court if disobeyed
Basic requirements 1) D is within jurisdiction 2) Subject matter arises out of contract between parties/concerns D's fraudulent or other unconscionable conduct, or arises from equitable or fiduciary relationship 3) Act D is ordered to do must not be illegal or impossible by Conflicts Supervision 8 (Property - Ch. 12, Rogerson)
Requirement 2 - Explanation
o Penn v Lord Baltimore decree of specific performance was made to enforce contract to fix boundaries of Pennsylvania and Maryland.
o Cranstown v Johnston creditor refused debtor's tender of payment to recoup money owed to him and put up debtor's land at public sale but bought it himself at low price. Held, ordered to reconvey land,
otherwise gross injustice arises.
o Masri v Consolidated Contractors International: C of
A, appointed receiver to collect in oil revenues over concession in Yemen belonging to judgment debtor company.
Order itself had no in rem effect (i.e. didn't alter title to property/receiver's success in obtaining actual title to property)
Any other equity or fiduciary relationship
Privity of obligation between parties
Norris v Chambers: held, court had no jurisdiction to determine matter; neither original company or vendor were parties to the action
Cf Mercantile Investment & General Trust v River
Plate Co: court, held had jurisdiction to enforce charge since Ds had expressly agreed to respect claimant's rights when taking transfer of land.
Choice of law
Immovable property: lex situs
Transfer, extinction of interests in immovable and formal/essential validity of transfers all governed by lex situs
No exceptions to rule.
Adams v Clutterbuck
Two domiciled Englishmen in England entered into lease of land in Scotland.
Held: Scottish law determined issue.Lease was not under seal. Argued that the shooting rights were not appurtenant to land,
as was true under English law.
Under that law, no seal was required.
Therefore, rights were appurtenant to land.
Application of lex situs includes renvoi
Capacity to convey or take conveyance of foreign land is governed by lex situs as well
Bank of Africa v Cohen
A married woman domiciled in England, by a deed executed here, agreed to make mortgage to bank in England of her land in South Africa to
Therefore, sued for breach of duty.
Held: no liability because she had no
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