Classification of cause of action / characterisation
- 1. CONFLICT OF LAWS CHARACTERISATION / QUALIFICATION OR CLASSIFICATION OF CAUSE OF ACTION BY ADV. CAROLINE ELIAS
- 2. Characterisation is also known as classification to English writers & known as Qualification to French writers. It is one of the important elements in the understanding and decision-making in a dispute having a foreign element. Once the court finds that it has jurisdiction, the next stage i.e. classification of cause of action arises. In this stage, the court will find out the real character of the suit and it will be put in the appropriate category. In this stage, the court will decide whether the cause of action relates to tort, contract , succession , matrimonial causes or guardianship of child etc. Unless this classification is done, the judge will not be able to select the law to be applied to decide the case.
- 3. Sometimes , the cause of action may be classified by English law/ any foreign law into different categories, and so arises conflict of classification. The issue of classification was discovered independently and almost simultaneously by the German jurist “Franz Khan” & French jurist “Bartin”, & later by “Prof. Niboyet “ of Paris, by the end of 19th century.
- 4. Concept in detail – with case laws In ogden v. ogden (1908) a French man under the age of 21 marries an English woman in England without obtaining the consent of his parent as required by French law. The French and English conflict rules agree that the formalities of marriage are governed by the Lex Loci Celebrationis (English law) and also that the husband must have capacity to marry by his personal law (French). But it is the issue in the case one of formalities (in which case the French rule will apply and the marriage will be void for want of capacity)? Or is the French rule to be characterized as one dealing with formalities ( and so inapplicable) or with capacity.
- 5. •A classic problem of characterization came before the Appeal court in Algiers:- In Anton v. Bartolo (1891) also called Maltese Marriage Case The husband and wife were domiciled in Malta at the time of their marriage. Subsequently, they settled in France and the husband bought land there. On his death the wife claimed a life interest in the French land. French and Maltese law had the same choice of law rules- succession to immovables was governed by Lex Situs (Law where the property situates), while matrimonial property rights were matters for the Lex Domicili (law of the domicile) at the time of marriage. However, French law classified the issue as one of succession where as Maltese law saw it as matrimonial property. In the event court applied Maltese law.
- 6. Problems of characterization :- (1) The 1st problem is Renvoi , determining whether the question falls naturally within this or that judicial category. (2) Second problem is the interpretation of what the connecting factor is. Connecting factor could be given different meaning in different countries. (3) Third problem is characterization itself. i.e. to identify the department of law under which some particular legal question fail in order to determine the rule of law to apply. Eg:- The Nigerian law and a foreign law holds diametrically opposed view upon the correct classification of a particular legal issue. For instance the applicable law to movables left by a deceased person could or may relate to the question of administration of estates in Nigeria, while the foreign laws may relate it to succession.
- 7. As a solution to this problem, characterization is dealt by three main theories:- (1) Characterization by Lex Fori (2) Characterization by Lex Causae (3) Two- fold Characterization( Dual theory of Lex Fori & Lex Causae) Other Theories in regard:- Characterization by Analytical jurisprudence Comparative Law theory Autonomous theory
- 8. Characterization by the Lex Fori( Law of the Forum) It was propounded in 1891 by the German Jurist, Franz Khan & later re-discovered by the French writer Bartin. They says, a Court dealing with the question of characterization, must invariably (subject to a few exceptions) apply and decide the issue on the basis of internal law; Provided there exists a corresponding rule, institution, legal relationship in the internal law, when compared to the foreign law. It means to apply Lex Fori , that is the nearest in equivalent to lex causae. They assert that the forum should characterize rules of foreign law in accordance with the nearest equivalent in its own domestic law. In Ogdon v. Ogdon , the court characterized by the LexFori , the argument in favour of this view is that if foreign law were to be applied, Lex Fori would lose control & will lose power.
- 9. Characterisation by the Lex Causae (Law governing the question) Despagnet & Martin Wolff have propounded this theory of lex causae. Wolff & Despagnet believe that characterization must be governed by the appropriate foreign law ( lex causae). This theory of lex causae, means that, where a judge is faced with a case, he should apply the foreign law which governs the question. In a case containing foreign element, Judge has to select the law to be applied for deciding the dispute In order to select the lex causae, there is choice of law rule. The choice of law rule will depend upon some connecting factors such as domicile, nationality, situation of property, place of celebration of marriage etc.
- 10. It is to be noted that even though the English Private International Law directs the judge to apply foreign law, for all purposes foreign law will not be considered as relevant. It is well established that procedural matters will be governed by Lex fori (law of forum/court) In Ogdon v. Ogdon, the English Court held that the judgement of the French Court was based upon the principle that the husband has not obtained consent of parents. According to English Judge, obtaining consent of parents is only a procedural matter. Procedural matters will be governed by Lex Fori i.e English law. As per English law, for violation of a procedural rule, a marriage cannot be declared null & void. Thus the English Judge has not recognized the French judgement & held the marriage with the French man is still subsisting. The Court declared the Second marriage as null & void.
- 11. Theory of Two Fold Characterisation (Dual theory of Lex fori & Lex Cause Prof. Cheshire & Dr. Rebertson are the proponents of this theory. They says , the problem of characterization can best solved by dividing the process of characterization into primary characterization (for the lex fori) & Secondary characterization ( for the lex causae). Lex fori, here does not mean the domestic rules of the forum alone, but it includes the rules of Private international law (of a nation). This dual theory of Lexfori & Lex causae would make the allocation of the legal issue to its correct legal category exlusively a function of the lexfori . Having established this primary classification, the court could then, through the legal principles of its own conflict of laws which connects the facts of the case with some foreign legal system, determine the judicial nature of any legal rule, institution or transaction by such foreign system, known as the lex causae
- 12. Universal Analytical Theory:- Sir Eric Beckett & Dr. Rabel are the main propounders of this theory. They said Classification to be based on general, comparative & analytical jurisprudence. This theory would result in the application neither the lawof the forum nor of “lex cause”, but of the law which is of neither. Comparative Law Theory:- Rebel & Beckett propounded this theory. Characterization should be governed by the analytical jurisprudence on the basis of comparative study of law.