Dr Nandini C P

Characterization/Classification
Chapter

 Introduction
 Classification of the cause of action-
a)Meaning
b)Difficulties
c)Basis on which classification is made
 Classification of a Rule of Law
a) the Problem described
b) Basis on which classification is made
Is classification peculiar to Pvt Intl Law

 In the first place, neither of these types of

classification (as will appear) is itself peculiar to private
international law. Both are also found as elements in
purely domestic legal processes of solution. The
unique thing for our purposes is rather the procedure
or technique whereby these two distinct types of
classification can be employed in combination to
permit some account to be taken of foreign as well as
domestic legal principles, when solving the juridical
questions implicit in facts which display foreign
features.
 Names

 Read Malta Law Guide- Classification in Private

International Law
 Read W. R. Lederman, Classification in Private
International Law, 29 Can. B. Rev. 3 (1951).
 An alternative word for classification is characterization/
French it is called qualification/Categorization
 Either consciously or unconsciously this classification has
to be undertaken
 Classification of the cause of action means converting a
factual situation into a legal category.
 Classification of Facts and of Laws
 Why?
 Most of the time, foreign rules of law of procedural
character are ignored in favor of lex fori.
 It is important to classify the foreign rule of law as
either of procedure or of substance.
 This process works vice versa as well, with foreign
substantive rule of law being chosen in favor of
substantive lex fori
 Categorization is a technique of interpreting and
applying the conflicts of laws rules of the lex fori to
the problem before the court
 Why and what?
 Private International Law manifests itself into a series of logical
sequences that cannot be skipped.
 The first and most logical step is to ascertain jurisdiction over the
case. If the court has no jurisdiction, then it is over before it has
even started.
 If jurisdiction is exercisable, then the next step is to determine
the legal nature of the question posed before the court. This is
where the process of classification comes into play.
 For example, is this a case of tort or contract compensation?
 Is it a case of succession or of validity of marriage?
 This step obviously cannot be skipped, because without figuring
out first what is the legal nature of the question, the court cannot
go on to apply the appropriate rule for the choice of law and
consequently apply the law chosen.
Classification process
Process of characterisation

 Characterization of the relevant issue

 Selection of the rule of conflict of laws, which

lays down a connecting factor for that issue

 Identification of the system of law which is

tied by that connecting factor to that issue
Case containing a Foreign Element

 Will English Court have jurisdiction- both over parties

and the cause of action
 So cause of action is to be classified e.g. contractual,
tortious etc so as to determine the jurisdiction
 Once satisfied , then the court have to determine
juridical nature of the question to be determined-
unless the above is done it is impossible to apply the
appropriate rule for the choice of law and thus to
ascertain the applicable law
 So the first issue for the court is classify the cause of
action
Select legal system
 The court have to next select the legal system that
governs the matter
 This selection will be conditioned by what has been
aptly been called a connecting factor
 Connection between the factual situation before the
court and particular system of law
 Connecting factors varies with the circumstances
 E.g. British Subject dies intestate, domiciled in France,
leaving movables in England and land in Scotland (need
to classify– Movables in France and Land (Situs in Scot)
Second issue

 Classification of the rule of law

 This is the determination of rule of law or
classification of rule of law or department – this is
done differently in different countries and the
same is a problem as which law is paramount
and to be chosen is a problem
 It may also involve “ incidental question’,
characterizing the incidental question than the
principle question….which may have to be
resolved before coming to a conclusion
Meaning of classification of cause of
action
 Allocation of the question raised by the factual
situation before the court to its correct legal category
 Its object is to reveal the factual situation before the
court to its correct legal category
 Its object is to reveal the relevant rule for the choice of
law
 Because unless judge decides he cannot choose the
rule to apply
 E.g. For property – is the relevant fact relating to
administration of assets or to succession…If movables
law of the forum and immovables by law of domicile
 Difficulties -A classic example of this
difficulty
 1.Difficulty in determining whether the question falls naturally within this
or that judicial category
 2. it may be a case where Eng Law and the relevant foreign law are
diametrically opposed view on the correct classification
 There may be conflict of classification
 Anton v Bartolo 1891 Maltese Marriage case-  In this case a Maltese
couple who married while being domiciled in Malta, acquired new
domicile in France. Husband purchased land in France. After the death of
the husband, the widow filled an action in France placing a claim on the
land of her now deceased husband.
 There was no issue with determining the rules of the choice of law as the
rules both in Maltese and French Private International Law were the
same on this issue; law of the situs applied in cases of succession to
immovables. The issue was with matrimonial rights. These depended
on the legal system in which the person was domiciled when he/she
What was the difficulty? Maltese
Marriage case-
 It was decided by a French court in Algiers.
 In this case, the critical decision was whether this was a case
about matrimonial rights or inheritance rights.
 French Private International Law classified this as a case about
inheritance in conflict with Maltese Private International Law,
which saw this as a question on matrimonial rights.
 When we have a situation like this, depending on where the
case is brought, the decision will be different as the court will
apply lex fori. In this case, if the action was filled in France, it
would fail, while if this was done in Malta, the widow would
have won.
 The French court, however, decided to apply Maltese
matrimonial law.
 Classification of a Rule of Law
[Procedure vs Substance]
 the next step after the classification of the legal category is to
choose the correct choice of law rule.
 A connecting factor such as nationality, domicile, etc. will help
determine this choice.
 The issue is that there must be a second process of classification.
This is due to the fact that there might be a need to identify the
legal category into which the law we have selected using our
choice of law rules falls into.
 That law has a certain level of authority, but not in all aspects of
the juridical question. So, for instance, marriage capacity of
parties is determined by the law of their nationality/domicile but
their formality of celebration [which is procedural in nature] of the
said marriage is determined by the English law.
 So, in this instance, a French procedural rule has no authority,
even though French substantive law has been chosen.  
Schools of thought

 Various schools of thought, some authors like

Beckett argue that we must use a combination of
comparative law and analytical jurisprudence to
find a generic way to classify legal questions.
However, this is not very practical.

 Law of the Forum [Lex fori] solution

 Lex causae solution
 Comparative law solution
 Via media solution
Basis on which classification is made

 Most of the time, foreign rules of law of

procedural character are ignored in favor
of lex fori.
 Classification is based on the basis of law of
the forum
 The issue often times is “on what basis
should the court make the classification?” 
 In Leroux vs Brown [1852] 
 Leroux v Brown [1852] 

 Defendant employed the plaintiff in France by means of an oral

contract which was to last for a period of more than year. The
contract was valid according to French law.
 The defendant argued that the plaintiff’s claim for damages was
invalid in England due to statutory limitation of one year for
contractual damage claims unless the contract was made in a written
form. The dilemma before the court in this case was whether to
classify this statutory prohibition as a procedural rule of law or as a
substantive rule of law.
 In this case, the court interpreted the statute literally and did not
devolve into further analysis.
 Some criticized this judgment as too restrictive due to basing its
decision on English internal law, rather than private international law.
 Nowadays, if a similar case is brought before an English court, it
would pay more attention to the foreign element of the case.
Ogden v Ogden [1908]
 A 19 year old French citizen married an English citizen in
England. He did so without the consent of his parents as
used to be required by the French law.
 Later, the French citizen was able to obtain annulment of
the marriage in a French court due to the said lack of
consent.
 Consequently, the English woman married another English
man, who in this case, challenged the validity of the
marriage arguing that the English woman was still married
to her French husband.
 In this case the court had to consider the validity of the
French marriage.
 Two connecting factors

 Two connecting factors may be noticed: husband domiciled in France and that
the marriage was celebrated in England.
 According to English Private International Law, there are two rules which can be
applied in this scenario.
 French law must apply to the essential validity of the marriage. This also includes
the husband’s capacity to marry in the first place.
 The second rule is that English law must apply in relation to the  formal validity of
the marriage [the ceremony].
 In this case, only the French law applied in relation to the essential validity of
marriage.
 This would not be so hard to ascertain if the reason behind the French law was to
make it impossible for the husband to establish matrimony unless he followed the
said law.
 The unfortunate ending to the case of Ogden v Ogden was that in the appeal
stage the court did not recognize the annulment made in France and this
resulted in the parties being considered married in England, but single in
Why classification not adopted?

 Only times when foreign classification may

not be adopted by local courts is when doing
so would violate public policy of the forum
itself or of some fundamental principles of
local law.
 Apt v Apt 1948
. The validity of proxy marriages raises an issue as to the method of
giving consent and the question whether the parties must be
physically present at the ceremony. The reality of consent as
distinct from the mode of giving it is not, however, a matter of
form.
Rules relating to the actual ceremony itself or to the preliminaries
to marriage are clearly formal in character. These include a wide
variety of matters, such as the time and place of the ceremony, the
nature of the ceremony (religious or civil) required, whether the
presence of the parties is necessary or whether a marriage by
proxy is permitted, the need for witnesses or registration, and
requirements as to residence, notice of intention to marry,
publication of banns and premarital blood tests
Exceptional English Case
 Cohn v Cohn 1945- Mechanical Characterization
 joint will by Mr and Mrs Cohn that survivor would inherit
 Mr cohn dies and mrs cohn and children are taken as
refugeess in Nazi Persecution
 They die by a air strike
 Now the last survivor would inherit the property?
 How do you determine who died later?
 English Law presumption elder die first???
 German law – they die simultaneously??
 Rule of evidence or procedure? Lex fori English Law
 If it is rule of sucession?- Lex Causae- German law
 Hindus in India????
 In Re Maldonado’s Estate 
 A person died without a will while domiciled in Spain. He left
26k £ in England.
 Spanish law dictated that the money should be passed on to
Spain, since the person left no relatives entitled to his estate.
 This is an interesting case because it is a great example of a
foreign rule of law being looked through the foreign context.
 In this case, English choice of law rule dictated that Spanish
law applied to intestate succession on movables.
 This was so due to the fact that the man was domiciled in
Spain, thus the law of the domicile had to be applied. Great.
Everything clear so far.
State as successor? Re Maldonado’s
Estate
 The issue arises when the court has to classify the Spanish
rule on intestate succession. In some countries the law is in
a form of the State acting as a successor
 In others, the State does not act as a successor, but instead,
confiscates owner-less goods. If the Spanish rule was to be
classified according to the latter form, then it had no say in
how the man’s assets were to be dealt with as this kind of
rule is not of law of succession, but of a state exercising its
sovereign powers.
 In fact, this is what happened in Re Musurus’s Estate [1936]
and in Re Barnett’s Trust [1902] where Turkish and Austrian
laws respectively acted in the state authority’s manner.
Re Maldonado’s Estate
 In Re Maldonado’s Estate the court looked at the Spanish
Civil Code which stated that “The State shall inherit”
movables. Expert’s testimonials also suggested that Spain
saw this situation in terms of succession. Thus in Spain, this
rule was classified as a rule of succession. The Court of
Appeal admitted to the Spanish law of the domicile and
allowed the said foreign law to determine the meaning of
the term “succession”. Note that according to English law,
there must be a close link with the deceased, so if the court
followed the English classification of this rule, it would
consider it as a confiscatory rule.
 THE MORAL OF MALDONADO'S
 the Estate of Mal-donado [1954] 2 W.L.R. 64 (C.A.), has
held that the Spanish Government was entitled to
succeed to the movable assets of a deceased person who
died domiciled in Spain, following the distinction drawn
by Kekewich J. in Re Barnett's Trust [1902] 1 Ch. 847, and
adopted in Re Musurus [1936] 2 All ER
 If the Spanish Civil Code would have provided that the
Spanish Treasury is not ultimus heres, but takes by virtue
of a jus regale, the claim would have been rejected-as
was that of the Austrian Treasury in Re Barnett's Trust,
and that of the Turkish Government in Re Musurus
 The Moral of Maldonado's Case Author(s): E. J. Cohn Source: The Modern Law
Review, Vol. 17, No. 4, [Criminal Law] (Jul., 1954), pp. 381-383
Bona vacantia

 Similarly, the claim of any Commonwealth

Government whose law is similar to English law
would have been rejected by the Court of Appeal
on the ground that such a Government would not
have " succeeded " to the deceased, but would
have taken the assets as bona vacantia
 See section 34 of the ISA/ sec 29 of the HSA and
also ML (Mulla)
 Art 296 of the Constitution vesting of property
 Escheat
Early case of commomrietes
 Commorientes is the phenomenon of several persons
respectively entitled to inherit from one another dying
simultaneously in the same event, such as a wreck,
without any possibility of ascertaining who died first. 
 Commorientes is also used to refer to the dying
persons themselves.
 Several persons entitled for inheriting
 Adams v National Bank of Greece & Athens 1958
 Huntington v Attrill 1893
 Re Martin, Loustalan v Loustalan 1900
Adams v National Bank of Greece &
Athens 1958
 In 1958 the Greek Government passed a law, Law No. 2292,
which authorised the amalgamation or merger of banking
companies and provided that any company which absorbed
another company by merger, or any new company formed
by amalgamation became the universal successor to the
assets and liabilities of the old company.
 By a decree made under that law the old bank and another
Greek company, the Bank of Athens (which, unlike the other
banks, had assets in England) were amalgamated and a new
company, the National Bank of Greece and Athens S.A.
(hereinafter called " the new bank "), was formed.
 Adams v National Bank of Greece & Athens 1958

 IN 1927 the National Mortgage Bank of Greece issued sterling mortgage

bonds which the National Bank of Greece guaranteed.
 The proper law of the bonds and of the guarantee was English
 In 1953 the National Bank of Greece and another Greek company, the
Bank of Athens, were amalgamated by Greek decree and a new
company, the National Bank of Greece and Athens, was formed to
take over the business of the amalgamated bank
 Subsequently the holder of a number of bonds claimed payment of
accrued interest from the original debtor bank, the National Mortgage
Bank of Greece, which had continued in existence, and on payment
being refused brought an action here not against the principal debtor
bank but against the new bank, the National Bank of Greece and Athens.
The reason for this appears to be that neither the National Mortgage
Bank of Greece nor the National Bank of Greece had assets or sufficient
assets (the reports are not clear on this point) in this country whereas the
Plea to be answered by courts
 Instead, the new bank denied that it could be made liable on a contract
governed by English law to which it was not the original party.
 This was a novel plea and, before it could be dismissed, the court had to
give a positive answer to two separate questions:

 (1) Would the English courts recognise the amalgamation of two or

more companies under the law of the place of their incorporation and
would they allow the new company to sue and be sued in England ?
Both the Court of Appeal and the House of Lords gave an affirmative
answer to this question and, in effect, no other answer seemed possible.
It is well settled that the existence and dissolution of a foreign
corporation depends on the law of the country of its incorporation and
it would be unreasonable not to regard amalgamation as falling into the
same categ0ry.

 (
Second plea…
 2) Would the English courts, in the absence of the plea of
novation or statutory assignment, compel the new company to
assume the obligations and allow it to enjoy the rights arising
under a contract governed by English law to which one of the
amalgamated companies was the party ?
 This was a more difficult question as it involved the conflict
between the respective provinces of the law governing the
amalgamation and of the law governing the contract's Greek
law admittedly could extinguish a Greek company and create
another Greek company in its place, but could it make such a
new company liable on an English contract to which it was not
the party? Once again all the judges in both the Court of Appeal
and the House of Lords reached the affirmative conclusion, but
they did not all reach it by the same route
Reasons
 …the time-honoured concept of universal succession.
 They held that the new bank was bound to meet the obligations of the old
bank on the contract because by Greek law it stood in the position of the
universal successor to the old bank, the original guarant0r
 In effect it seems to lead to the conclusion that nothing short of a
universal succession by foreign law will be allowed to affect the
discharge of liability on a contract governed by English law
 …chose to deal with the problem in terms of the concept of status
 ….The concept of status and the distinction between status and its
incidents, which have theoretical and practical attractions in cases
involving domestic status, are of far less assistance in the field of
company law
 Viscount Simonds alone discarded both the concept of status and that
of universal succession and preferred to base his decision on the
principle of " rational justice."
Metliss
 In 1955, one of the bondholders, Mr. Metliss,
commenced an action against the new bank claiming the
interest that was in arrear on his bonds
 In the Metliss case the new bank was in all the courts
held liable to discharge the guarantee obligations of
the old bank. A doubt, however, remained as to whether
or not this was due to the new bank having been
substituted for the old bank as the actual party to the
contract or merely directed to undertake its liabilities.
The answer to this question became the main issue in
Adams V. National Bank of Greece and Athens S.A
 HL held
 The louse of Lords held that the action would lie because (briefly) in
the circumstances we would recognise the law of Greece, the law of
the domicile of the dissolved company and of the new company,
which determined the status of the new company and which had
nominated it universal successor inheriting all the rights and
liabilities of the dissolved company. The Greek moratorium was no
defence since the proper law of the contract was English.
 Greek Government passed, in July, 1956…. became the universal
successor to the rights and obligations of the companies amalgamated
except for obligations to which such companies were liable as principal
or guarantor on bonds payable in gold or foreign currency. This decree
was given retrospective effect and applied to the National Bank of
Greece and Athens as from the date of its creation. The Bank was thus
absolved by Greek law from all liability as guarantor of the bonds
Decision
 The new bank and the bondholders thus stood as from 1958 in a contractual
relationship (or in a relationship ‘‘ indistinguishable from that which arises out of
contract ) governed by English law as the lex causae and independent of Greek law.
In so far, therefore, as English law was prepared to recognise and give effect to the
universal succession created by Law No. 2292 this became part of English law and,
as part of that law, affected the English contract
 Diplock J. held that in the process of characterisation the court must pay more
regard to the substance than to the form of foreign provisions and accordingly
treated it as a law relating to the discharge of the contract rather than to the
status of the company. The learned judge’s insistence on looking at the substance
of the matter and his refusal to be influenced by the form of Law No. 8504 and by its
retrospective operation is much to be welcomed and provides a contrast to the
uncritical acceptance of the foreign classification by the Court of Appeal in Re
Maldonado’s case
 ..in the absence of novation or statutory assignment, only a true universal successor
can be made to assume liabilities arising undm an English contract to which it was
not the original party.
 Huntington v Attrill 1893
He resided in Ontorio
 International Law—Foreign Judgment—Penal Actions—Distinction
between Public and Private Penalties. The appellant, in June, 1880,
became a creditor for money lent to the Rockaway Beach Improvement
Company, Limited, which carried on business in the State of New York,
being incorporated pursuant to Chapter 611 of the State laws of 1875.
 The respondent was, in June, 1880, a director, and in that capacity an
officer of the company within the meaning of the statute. On the 30th
of that month he, along with other officers of the company, signed and
verified on oath, as prescribed by sect. 37, a certificate setting forth
that the whole capital stock had, at its date, been paid up in cash.
 In the year 1883, the appellant instituted a suit against the respondent
before the Supreme Court of New York State for the unpaid balance of his
loan to the company, alleging that the certificate contained
representations which were material and false, and that the respondent
had incurred personal responsibility for the debt as provided by sect.
 Huntington v Attrill- law in question

 Sect. 21 of the Act provides that: “If any certificate or report

made, or public notice given, by the officers of any such
corporation, shall be false in any material representation, all the
officers who shall have signed the same shall be jointly and
severally liable for all the debts of the corporation contracted
while they are officers thereof…..That liability was in reality and
under all the circumstances contractual, and not by way of
penalty, and the action in which it was enforced was not a penal
action, but one by which a private remedy was sought to be
enforced. The appellant contracted with the company, on the
faith of the liability imposed in his favour as the respondent, by
sect. 21. That liability – resulted in debt by the respondent.
Held in Attril
 To an action by the appellant in an Ontario Court upon a judgment of a New
York Court against the respondent under sect 21 of New York State laws of
1875, c. 611, which imposes liability in respect of false representations, the
latter pleaded that the judgment was for a penalty inflicted by the
municipal law of New York, and that the action, being of a penal
character, ought not to be entertained by a foreign Court:—
 Held, that the action being by a subject to enforce in his own interest a
liability imposed for the protection of his private rights, was remedial,
and not penal in the sense pleaded. It was not within the rule of
international law which prohibits the Courts of one country from
executing the penal laws of another or enforcing penalties recoverable in
favour of the State:
 Held, further, that it was the duty of the Ontario Court to decide whether
the statute in question was penal within the meaning of the international
rule so as to oust its jurisdiction; and that such Court was not bound by
the interpretation thereof adopted by the Courts of New York.
 Re, Marie Loustalan- facts
 Re, Marie Loustalan claimed probate of the will of her sister, Catherine
Martin, a married woman deceased, " as contained in a notarial copy, the
will being executed according to French law, and expressed in the French
language…( the holograph will)
 The final question was whether the deceased's marriage in England had

resulted in a revocation of the will under section 18 of the Wills Act, 1837,
and the summons asked "
 (1) What was the domicile of the testatrix at the date of her death,
 (2) Whether the marriage was celebrated according to English

matrimonial law, or according to the French matrimonial regime, and (3)

Whether the will was revoked by the marriage.“
 Classification question???
Re Martin, Loustalan v Loustalan 1900- Fugitives
and Domicile

 In Re Martin, Loustalan v. Loustalan, Lindley LJ suggested that

the all important factor is whether there is a definite period after
which a wrongdoer may return home in safety. In other words, if
the crime ceases to be punishable or the sentence enforceable
after a given number of years, residence in another country,
unless fortified by other facts, does not affect a change of
domicile; but if the fugitive remains perpetually liable to
proceedings, then the new place of residence becomes the
new domicile.
 It was also observed that if the stay is long, as it was 20 years in
this case, it may be taken as established that fugitive intended
to make that place his home. All these inferences equally apply
to a fugitive who runs away from his civil liability.
It was more of a Domicile case than a
classification?
 Re Martin is, therefore, primarily a case on domicile,
and once the husband's domicile was accepted as
being English at the date of marriage, English
domestic law applied, independently of section 18
of the Wills Act. If, however, the decision involved
consideration of that section, it seems an authority
on Classification only in the sense that the nature of
an English rule of law required interpretation. There
was, throughout, no problem of " Classi- fication of
the issue or cause of action" before the court.
Indian Decisions

 Sc in India considers that when court has

chosen a proper law, it considers that law as a
“ living law”
 Read Delhi Cloth & General Ltd V Harman
Singh AIR 1955 SC 590
 Agencia Commercial International Ltd &
Ors v Custodian of the Branches of Banco
National Ultramarino AIR 1982 SC 1268
Conclusion
 Classification has been described as ". . a process of sub-
sumption, that is, the problem whether a given rule of law
falls within the scope of a given conflict rule of the forum”
 ” Is the concrete question involved in the particular situation
subsumed under the abstract question specified in the
conflict rule”
 The court is said to proceed by stages and these are
(accepting that there is jurisdiction) (a) Classification of the
cause of action, (b) selection of the lex causae, and (c)
application of the lex causae,
 " Classification " is synonymous with the problem of "
selection of the proper law”
Further Reading

 Classification Re-Classified Author(s):

Anthony J. Bland Source: The International
and Comparative Law Quarterly, Vol. 6, No. 1
(Jan., 1957), pp. 10-27 Published by:
Cambridge University Press on behalf of the
British Institute of International and
Comparative Law