Meaning And Definition
The theory of lex fori was first proposed by the German and French writers,
Kahn and Bartin 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
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:
- Whether the particular Court has the jurisdiction to try the case
- Characterisation of the issues
- 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.
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.”
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. 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 TheoryThere 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.
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.
classified as follows:
- 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.
- 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.
- 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.
- 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.
Ogden V Ogden 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.
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.
The lex loci contractus must prevail. The marriage later contracted
by the defendant was bigamous and must be annulled.
Re Berchtold 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.
The issues were the conflict of Laws for the land devised on trust for
sale, Lex situs – Lex domicilii.
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.”
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.
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.
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.
- Vol. no. 30, F. Kahn, Gesetzkelten, Jehrings Jahrbucher (1891).
- F. Bartin, De L’impossibilité D’arriver À La Suppression Définitive Des
Conflits Des Lois (1897)
- Britannica, https://www.britannica.com/topic/conflict-of-laws/Choice-of-law,
(last visited March 24, 2021).
- Lawteacher, https://www.lawteacher.net/free-law-essays/international-law/characterization-of-applicable-laws-international-law-essay.php,
(last visited March 24, 2021).
- Id. At 2.
- Ogden v Ogden, 144 S.W. 355 (France).
- Re Berchtold (Berchtold v. Capron.), 1913. B. 2773,  1 Ch. 192
- Re Berchtold (Berchtold v. Capron.), 1913. B. 2773,  1 Ch. 192,
para 1 (United Kingdom).
- 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,