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Lex Fori Theory of Classification

Meaning And Definition

The theory of lex fori was first proposed by the German and French writers, Kahn[1] and Bartin[2] in the 1890s. it is a prevailing theory which has been adopted and implemented by the English Courts as well.

Lex fori theory or law of the forum is a way to tackle the problem of characterisation. The theory of characterisation regulates the problem of conflict of laws. The theory of characterisation allows a Court to choose which law will be applicable in a particular issue. Until and unless the same is settled with, it will be impossible to apply the appropriate conflict of law rule.

The theory suggests that a particular issue should be characterised in accordance with the own domestic laws which are applicable as well as the foreign rules of law in accordance with their nearest and closest domestic law.

When a case comes to a Court, the Court applies domestic laws if the elements involve are domestic, however when foreign elements like domicile are involved, the Court must consider three main things:
  1. Whether the particular Court has the jurisdiction to try the case
  2. Characterisation of the issues
  3. Choice of law to be applied in the issues so categorised.
Usually, the Court which takes the jurisdiction tries the case in accordance with its own domestic laws unless the parties object to it or there is a foreign element involved. In view of the Court, it is in their interest to have their own law applied since according to the better-law approach, the forum’s law is deemed to be better.[3]

The argument of Bartin in favour of the lex fori theory is that the Courts as well as the Judges are bound by oath:
“to the duties of their own legal system and no one else and can therefore only administer same.”[4]

The choice of law should simply be the one which guides the matters of the Court of jurisdiction so that no ambiguity arises as to which forum’s laws should be applied.[5] In case there is no corresponding law in the lex fori, the Court must apply rules of a similar law which exist in its jurisdiction.

Exception To Lex Fori Theory

There are two main exception to the rule of characterization that is to be made on the basis of lex fori:
  • Lex Situs (applicable to either movable or immovable properties)
  • Lex loci contractus (applicable in cases of contract by correspondence)
The reasoning behind both of these is that this rule would best sub-serve the security of transactions affecting property/contract.

Problems Associated

Even though the theory of lex fori seeks to settle the issue of conflict of law, there are certain issues and objections associated with the theory.

They are classified as follows:
  1. The application of the theory may lead to distortion of the foreign law in issue and make it ineffective. Likewise, the application of foreign law may render the domestic law as inapplicable in a particular issue.
  2. The theory does not work when the foreign law has no resemblance with the domestic law.
    For eg. The grounds for divorce applicable to Hindus according to the Hindu Marriage Act, 1955 in India may differ with the grounds for divorce applicable in a foreign land, say France.
  3. Application of lex fori may lead to misinterpretation of a foreign law and apply it in a case where it would originally not be applicable.
  4. Lastly, the proponents of lex fori theory seem to suggest that it is facts alone which have to be classified, but this is not so; it is facts which are presented in the light of a foreign law.

Case Laws:
  • Ogden V Ogden[6]

    Facts:
    A French man (defendant) married an English woman (plaintiff) in England. However, he did not obtain the consent of his parents before marriage (According to French law, there is a rule which required parental consent to marriage). Hence, by a decree of the French Court, this marriage was annulled, on the ground that the consent of the parent, as required by French law, had not been obtained. The defendant subsequently married a Frenchwoman in France. Later, the plaintiff filed a suit in England for the dissolution of her marriage with the defendant on the ground of his adultery and desertion.

    The English Court applied the English conflict rule by stating that the place of celebration of marriage is England, after considering the French requirement as a matter of forum. The Court thus found the French law of requiring parental consent as invalid and upheld the validity of marriage.

    However, a French Court, while deciding on the validity of the same marriage applied the French conflict rule. While defining the necessity of parental consent to marry, the Court declared the marriage as null.

    Issues:
    The issues in the case were the nullity of marriage, bigamy, irregularity of French law, jurisdiction of the case, conflict of law.

    In the present case, both England and France had same conflict rules regarding the place of celebration of marriage and party’s domicile. Nonetheless, the result was different due to difference in the definition of issue. This challenge of defining and classifying the issue as well as the connecting factor is called as characterization.​

    Judgement:
    The lex loci contractus must prevail. The marriage later contracted by the defendant was bigamous and must be annulled.
     
  • Re Berchtold[7]

    Facts:
    A Hunagrian man died, leaving behind his will which dealth with his estate in England. By that will he devised and bequeathed all his freehold estate and all other his real estate and all his personal estate in the United Kingdom to his trustees upon trust for sale and conversion. He was domiciled in Hungary and hence by English laws of intestacy concerning movable properties, the law of domicile would be applicable i.e. Hungary.

    Issues:
    The issues were the conflict of Laws for the land devised on trust for sale, Lex situs – Lex domicilii.

    Judgement:
    The court chose to administer the lex situs rule as to determining movable and immovable property and thus treating the freehold as money. “When a person domiciled in a foreign country dies intestate leaving an interest in the proceeds of sale, of English freeholds which are subject to a trust for sale but not yet sold, such an interest is an immovable, and the succession thereto is governed by the lex situs.”[8]

    This case illustrates the inefficacy in suggesting a single theory as a model in conflict of laws. In this case, the Court decided the case with the most logical means while dealing with the said immovable property.

Conclusion
A universal application of the theory of lex fori would result in the application of neither the law of the forum nor of lex causae, but of the law which is of neither.[9]

Therefore, Bartin’s theory merely leads to not socially most undesirable results. As a result of this, this theory has not been accepted by any country.

This theory furthermore falsifies foreign rules and law and fails completely when there is no distinction between forum law and the foreign law. Hence, in opposition to this theory of Bartin, the lex causae theory and other theories of characterization have ben formulated.

End-Notes:
  1. Vol. no. 30, F. Kahn, Gesetzkelten, Jehrings Jahrbucher (1891).
  2. F. Bartin, De L’impossibilité D’arriver À La Suppression Définitive Des Conflits Des Lois (1897)
  3. Britannica, https://www.britannica.com/topic/conflict-of-laws/Choice-of-law, (last visited March 24, 2021).
  4. Lawteacher, https://www.lawteacher.net/free-law-essays/international-law/characterization-of-applicable-laws-international-law-essay.php, (last visited March 24, 2021).
  5. Id. At 2.
  6. Ogden v Ogden, 144 S.W. 355 (France).
  7. Re Berchtold (Berchtold v. Capron.), 1913. B. 2773, [1923] 1 Ch. 192 (United Kingdom).
  8. Re Berchtold (Berchtold v. Capron.), 1913. B. 2773, [1923] 1 Ch. 192, para 1 (United Kingdom).
  9. Dr. Shivani Singh, Characterization of an International Conflict in Private International Law: The Concept and the Complications, 08 Issue 4 International Journal Of Research In Engineering, It And Social Sciences 18, 20 (2018).

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