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Coherence and Continuity: A Study in Comparative Codification

  • Celia Wasserstein Fassberg


The English common law is frequently referred to as a seamless web; continental lawyers tend rather to think of law in terms of internal coherence and consistency. This is not merely a linguistic fact, and the terms are not simply interchangeable. Each reflects the characteristic mode of thought and of development in its respective system: the common law constantly and gradually emerging as a cumulative historical process; continental law stemming from, and in every case ultimately resting on interpretation of, codes, the product of a moment in history. Thus, although they are both capable of denoting the same idea of wholeness, each term has a slightly different connotative emphasis, the one stressing historical coherence and the other emphasising conceptual coherence.

This is but one example of the proposition that institutions can not be imported wholesale, that foreign legal provisions, and terms of thought and reference, have to be evaluated beyond their immediate superficial appearance before they may be adopted or used as measures for local purposes. All such institutions have both a historical and a contextual significance which makes comparison on the level of one-dimensional questions such as, “Which is the better rule or the more attractive term?” meaningless.



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1 Pollock, F. and Maitland, F. W., The History of English Law (2nd ed., reissued Cambridge University Press, 1968) vol. 1, p. 1.

2 See for example, Stein, P., Legal Institutions, The Development of Dispute Settlement (London, 1984) 94ff.; Merryman, H.H., The Civil Law Tradition (Stanford, 2nd ed., 1985) 61.

3 For a discussion of the different ways of conferring rights on third parties, see Shalev, G., “Third Party Beneficiary: A Comparative Analysis” (1976) 11 Is.L.R. 315, at 322ff.

4 Levontin, A., The Choice of Law (Proposal for a Law with Introduction and Abridged Explanatory Notes, Ministry of Justice, Jerusalem, 1987). An English version, to be published by the Sacher Institute for Legislative Research and Comparative Law, Faculty of Law, The Hebrew University of Jerusalem, is forthcoming.

5 The explanatory notes deal with the individual provisions and chapters of the law; only exceptionally do they clearly articulate its conceptual framework. Much of what follows is, consequently, my own understanding of the proposal and of its relation to traditional doctrine.

6 All foreign judgments require that local private international law rules be examined and applied, but not all foreign facts are significant in the sense that they influence jurisdiction or choice-of-law. They become significant only to the extent that the rules accord them significance as determinative factors. Before such rules are consulted, however, any foreign fact is of potential significance.

7 The Hungarian Law Decree on Private International Law of 31 May 1979 deals with choice-of-law, foreign judgments, jurisdiction and legal assistance to foreign courts; the Proposed Swiss Federal Law on Private International Law of 10 November 1982 deals only with the three central topics of choice-of-law, jurisdiction and foreign judgments (and arbitral decisions); and the Austrian Federal Law on Private International Law of 15 June 1978 deals exclusively with choice-of-law.

8 For a discussion of the distinction between private international law (choice-of-law) and the law of international civil procedure (jurisdiction and foreign judgments), see Vitta, E., Corso di Diritto Internazionale Privato e Processuale (Torino, 2nd ed., 1983) 107 ff.

9 See, for example, Rigaux, F., “Quelques Reflections de Nature Methodologique sur la Codification du Droit International Prive en 1984” in Problemi di Riforma del Diritto Internazionale Privato Italiano (Consiglio Nazionale del Notariato, 6 Collani di Studi, 1986) 403, at 411ff.

10 The most significant deviation from the traditional model is represented by the various substantive approaches employed, principally for tort situations, in the United States. For a short survey see Morris, , The Conflict of Laws (London, 3rd ed., 1984) 512ff.

11 For a description of this model see Cheshire, G. and North, P. M., Private International Law (London, 10th ed., 1979) 41ff, Kahn-Freund, O., General Problems of Private International Law (Leyden, 1976) 5, Batiffol, H.Lagarde, P., Droit International Prive, Vol. I (Paris, 7th ed., 1981) para. 210; Vitta, supra n. 8, at 113.

12 The objective/subjective proper law debate looks at first sight as if it involves simply the manner in which the proper law should be identified. It has developed into a debate over the scope of party autonomy which has made possible the co-existence of a number of different laws independent of the will of the parties, each governing different aspects of the contract. For a critical analysis of this debate, see Levontin, , “Conflict of Laws with Reference to Transnational Contracts” in Israel Academy of Sciences and Humanities, Proceedings (Jerusalem, 1968, in Hebrew), Vol. 3, p. 19 In Europe, instead of identifying a separate proper law of the contract for matters which the autonomy of the parties cannot control, some systems have required that the subjective proper law have some objective relationship to the situation, Wolff, M., Private International Law (Oxford, 2nd ed., 1950) 417. For discussion of the meaning of party autonomy with regard to the choice of a governing law for a contract, the limits on their autonomy, and the use of the concept of fraude à la loi in this context, see Batiffol – Lagarde, supra n. 11, at paras. 572–675.

13 Wolff, supra n. 12, at 186ff, Dicey, A. V., and Morris, J. H. C., The Conflict of Laws (London, 10th ed., 1980) 654ff, Batiffol – Lagarde, supra n. 11, at para 299ff, Vitta, supra n. 8, at 151ff.

14 Dicey – Morris, supra n. 13, at 51ff, Batiffol – Lagarde, supra n. 11, at para 313ff, for a comparative discussion and bibliography see Grodecki, J. K., “Intertemporal Conflict of Laws”, International Encyclopaedia of Comparative Law (Tubingen, 1976) vol. 3, ch. 8.

15 Wolff, supra n. 12, at 206ff, Dicey – Morris, supra n. 13, at 45ff, Batiffol – Lagarde, supra n. 11, at para 312ff, Vitta, supra n. 8, at 169ff.

16 Wolff, supra n. 12, at 146ff, Dicey – Morris, supra n. 13, at 31ff, Batiffol – Lagarde, supra n. 11, at para 291, Vitta, supra n. 8, at 141ff.

17 See Francescakis, , La Théorie du Renvoi et le Conflit de Systemes en Droit International Prive (Paris, 1958), Levontin, , Choice of Law and Conflict of Laws (Leyden, 1976). In an ideal world as envisaged by the early scholars of conflict of laws, the categorical, allocational method of choice-of-law is universally valid and universally held, designed to cope only with differences in the content of separate national laws, all of which draw both the extent and the limits of their imperativeness from a supra-national, natural state of things. In this ideal model, the methodological problems described – indicating conflicts between systems rather than between laws – do not arise, since all systems are uniform in structure. Only in the reality of diversity, local independence, and sovereignty do such problems arise and flourish.

18 See in particular, Francescakis, supra n. 17, at para 95ff.

19 Although produced for the individual case, such solutions are often developed into general rules. Thus for example, the decision in re Anneslev (1926) Ch. 692 serves as a basis for the general rule that in classifying the connecting factor only the lex fori is relevant So too, the famous decision in the Forgo case developed into a general rule for certain areas of French law on the scope of reference to foreign law (see Batiffol – Lagarde, supra n. 11, at para 300ff).

20 For a classic criticism of this model, see Cavers, , “A Critique of the Choice-of-Law Problem” (1933) 47 Harv. L.R. 173.

22 Supra n. 18 and related text.

23 A different kind of solution to the problem of justice has been to abandon traditional “jurisdiction-seeking” choice-of-law rules, and choose the appropriate law on the basis of the forum view of the most just, generally in terms of furthering the legitimate policies of the laws involved. For an overview of this trend in the United States, see Morris, supra n. 10, at 512ff. This approach places the focus on substantive rather than on allocational justice but aggravates the problem of foreseeability, and it has not yet been shown to be a viable alternative to the familiar approach. For an analysis of the American methodologies in the area of tort law in which they are most evident, see Morse, , Torts in Private International Law (Amsterdam, 1978) 219ff.

Other ways of dealing with the problem of justice within traditional methodological frameworks include efforts to provide a number of alternative choice rules for traditional categories. See for example sec. 5 of the Matters of Dissolution of Marriage (Jurisdiction in Special Cases) Law, 1969, (23 L.S.I. 274) which refers the judge in order of preference to the law of the spouses' common domicile, the law of their last common domicile, the law of their common nationality, the lex loci celebralionis, and the lex domicilii of one of the parties. See, too, the Swiss Proposal for a Federal Law on Private International Law of 10 November 1982, art. 42(2): for the validity of a marriage performed in Switzerland – Swiss law or the national law of one of the spouses; art. 59: for divorce and separation of foreign nationals, one of whom is domiciled or resident in Switzerland – their common national law, or Swiss law if their common national law either does not provide for divorce at all, or makes it extremely difficult; art. 129: for tort liability – the law of the parties' common residence, the lex loci delicti commissi if they have no common residence, and the lex fori if the parties choose to be governed by it.

Another approach has been to lay down special substantive rules for non-domestic matters, as for example in the afore-mentioned sec. 5 of the Matters of Dissolution of Marriage (Jurisdiction in Special Cases) Law, 1969, which permits the judge to ignore all the choice references and dissolve the marriage solely on the basis of the parties' consent. See also Mehren, A.T. von, “Special Substantive Rules for Multistate Problems: Their Role and Significance in Contemporary Choice-of-law Methodology” (1974) 88 Harv. L.R. 347.

These means in turn, however, tend to aggravate both the theoretical aspect of the methodological problems and the problem of justice by entrenching the active role of the forum and emphasising the imperativeness and sovereignty of each system with regard to others.

24 On the tension between the desire for international harmony on the one hand and internal consistency on the other, see O. Kahn-Freund, supra n. 11.

34 Sec. 1(1).

35 Sec. 2.

36 Sec. 6.

37 Sec. 2. Cf. Dicey – Morris, supra n. 13, at 775ff., and Cheshire and North, supra n. 11, at 212ff. for a functional perception of the objective proper law; but see Graveson, R.H., Conflict of Laws (London, 7th ed., 1974) 402ff., who minimises the relevance of the distinction on the functional level.

38 Sec. 3.

39 Secs. 1–13.

40 Secs. 10(d), 11(c).

41 Sec. 13.

42 Morse, supra n. 23, at 23ff.

43 Ibid., at 241ff., 285ff.

44 The Swiss proposal for a Federal Law on Private International Law of 10 November 1982 provides in art. 129 that if the parties have a common place of residence, the law ofthat place should control their relations, and that the lex loci delicti should govern only if they are resident in different States. The same willingness to turn to the common personal law of the parties, notwithstanding the fact that prior to the act complained of there was no relationship between them, can be found in Chaplin v. Boys (1971) A.C. 356. An unusual example of willingness – somewhat unnecessary in the circumstances – to take into account the personal law of only one of the parties, when it did not coincide with the lex loci delicti, can be found in the Israeli decision Klausner v. Berkowitz (1983) 37(iv) P.D. 449.

45 Thus, for example, the provision dealing with unjust enrichment specifies only the laws which may relieve the beneficiary of the obligation to compensate his benefactor; the provision dealing with trust talks only of the subjection of the trust property to the trust and the non-contractual rights of the trustee.

46 Levontin, supra n. 12, at 56ff. This position is taken after discussion of the difficulties produced by the proposition that contracts cannot have any natural “seat” or any closely related law which sustains them. The same may be said of obligations arising from other civil wrongs.

47 For a similar approach, see Kahn-Freund, supra n. 11, at 12–15. The distinction “not sufficiently emphasised by legal scholars” between “divisible” and “indivisible”, “quantifiable” and “unquantifiable” issues runs parallel to the proposed distinction between transitory and local matters; it is made on the basis of effective power to control and each category includes the same matters in each model.

48 For a full exposition see Levontin, supra n. 17. Tangible property is easily located. Intangible property is located in any State whose system recognises that it exists. Status is equated with property for the purposes of the distinction between rights in rem and rights in personam, transitory and local actions. Consequently, it too must be located in order to identify the authorised law. For the purposes of the proposal, it is located in the society in which the propositus is domiciled, in the sense that his life is centred there. The choice between nationality and domicile is then made on the same basis as the general rules of choice, that of effective control, since the society in which a person lives or has the centre of his life clearly has more effective control over him than does a State whose only relationship to him is expressed in the formal link of citizenship.

49 They appear in the chapter dealing with acquired rights, whose tone is set by sec. 15 which deals with the recognition of rights acquired under a foreign law. Sec. 21, in contrast, which defines the authorised law for each class of rights, talks in a more general way of the “authorised law”.

50 For an explanation of these terms see Vitta, supra n. 8, at 54ff.; for a unilateralist perspective on private international law, see Gothot, P., “Le Renouveau de la Tendance Unilatéraliste en Droit International Prive” (1971) 60 Revue Critique de Droit International Prive 1, 209, 415.

51 The distinction between transitory and local rights does not mean, as might first seem necessary, that contractual and tortious claims can be brought only under Israeli law, and that foreign law will be relevant to such claims only to the extent that Israeli law imports it as a defence (see infra Part VI). Rights of any kind may be pursued in Israel (subject only to rules of jurisdiction) under the law authorised to create them. Where, under the facts of the case, Israeli law is authorised, Israeli law may be relied on; where, under the facts of the case, only foreign law is authorised, only the appropriate foreign law may be relied on Where, under the facts of the case, both are authorised, both may be relied on, as alternative bases for the claim. The distinction, and the rules of authority based on it, simply demonstrate that in obligations – transitory matters on the other hand, forum law has a far broader scope than in local matters, and on the other unlike the authority of the forum in local matters, this scope is not exclusive. If a right has been acquired under a foreign law regarded by us as authorised, it may be pursued as such – whether its source is contractual or tortious, whether it arises from marital property or from succession and regardless whether or not a claim would lie in forum law. Its juridical nature will be relevant only in identifying the category to which it belongs for the purpose of applying the rule designating the authorised law. As we have seen, rights in personam may be acquired under any law to which the defendant has subjected himself, and under his domiciliary law, which is always authorised to impose obligations on him. This is the rule from which the Israeli authority to create such rights in transitory claims is drawn. In a claim based on the acquisition of a right in personam under foreign law, the foreign law will then be relevant as the foundation of the right, not in its traditional role as the law which governs the contract, but rather as a law which imposed an obligation on the defendant, and which was justified, in our view, in doing so because he was subject to its control. The internal mechanics of the foreign law in producing that right are not relevant here any more than they are in other claims founded on foreign law. Only its final word on whether or not a right has been created is required (see infra Part V). The right in question may be a transitory one – and it may qualify as such for a claim under forum law, but since in our view, because it is a transitory matter, other laws may simultaneously be authorised to create such rights and obligations, all we need to know is whether a qualified foreign law did indeed do so. The principle is similar to that underlying the rule that foreign judgments will be recognised, regardless of the exact basis of the decision or the constitutive elements of the right in the foreign court, if only it was authorised in our eyes to impose an obligation on the judgment creditor.

52 For a systematic exposition see Levontin, supra n. 17.

53 Sec. 53 provides that where the proposal does not take a specific classificatory position on an issue, claims should be subjected to choice rules – in other words, classified – on the basis of comparative and analytical jurisprudence (cf. Beckett, , “The Question of Classification (Qualification) in Private International Law” (1934) 15 Br. Yrbk. Int'l L. 46). It provides further that the character of an institution, a rule or a judgment, as fiscal or criminal for example, should be determined by means of a functional examination of the institution in its own law in the light of Israeli perceptions (cf. re Cohn (1945) Ch. 5). Comparative and analytical jurisprudence are resorted to not, as is usually advocated, for the specific institutional classification of an issue, which is usually the bone of contention, but rather for its juridical nature, as a right in rem or in personom, since this is all that is required to identify the authorised law. Once this is determined, the only classificatory problem which can arise is the kind provided for in the second part of the rule, where a foreign institution has to be classified for the purposes of a general Israeli rule, such as that foreign fiscal rules not be applied, and the two systems differ over the way in which a given rule – the dispositive rule – should be classified for the purposes ofthat rule. In such cases, since the forum rule is designating a class of rules, for its purposes, its meaning should be followed, and the foreign rule classified on a functional basis, to see whether its effect in the foreign system is of the nature referred to by the forum rule.

54 Sec. 51 in the proposal reflects the traditional Anglo-American position in this context: Dicey – Morris, supra n. 13, at 1206ff.; for the similar position in French law see Batiffol – Lagarde, supra n. 11, at para. 329; for the somewhat different approach of German and Austrian law see Kegel, G., Internationales Privatrecht (Munich, 3rd ed., 1971) 200; Schwimann, , Grundriss des Internationalen Privatrechts (Vienna, 1982) 51ff.

55 On the fictional presumption that foreign law is identical with forum law, see Dicey – Morris, supra n. 13, at 1216, Kales, , “Presumption of Foreign Law” (1906) 19 Harv. L. R. 401, Shava, M., “The Presumption of Similarity of Laws” (1974/1975) 4 Iyunei Mishpat 583. On the residual use of forum law in such circumstances, see Kahn-Freund, supra n. 11, at 276ff, David, C., La Loi Etrangere devant le Juge du Fond (1965) para 115ff, Vitta, , Diritto internazionale Privato (Torino, 1972) 231.

56 The proposal distinguishes between social status – the status of a person in society, which is governed by his personal law, the law of the society concerned with his status – and relative status – the status of a person or his relationship vis-à-vis a particular person, which is treated as a relationship in personam and governed by the law authorised for rights in personam and the rules of jurisdiction for obligatory judgments (secs. 25, 59, 60).

57 See, for example, Gottlieb v. Gottlieb (1950) 5 P.D. 57.

58 Art 65 of the Palestine Order-in-Council, 1922. This is of course somewhat hypothetical, since it is virtually inconceivable that the judgment, if indeed it is valid in our eyes, should not be pleaded, and that it should not suffice to undermine any claim based on an inconsistent position in foreign law. It is the internal inconsistency in principle which is disturbing, rather than any specific case which might be imagined. For a discussion of this problem in Israeli law see Levontin, , “Foreign Judgments and Foreign Status” (1954) 3 Am. J. Comp. L. 199.

59 Deciding in the course of a property dispute between two parties that the property belongs to A rather than to B is of course declaratory and not constitutive, even though it is not a typical declaratory judgment, even though it does deal with property rights and even though, after the decision, A's right is more effectively protected against B's claim than it was prior to the decision.

60 Secs. 73, 90. The exposition of the rule of jurisdiction as an emanation of the rule of choice is not quite accurate. Both are simply expressions, each in its own field, of the general rule of authority At the same time, it is perhaps possible to argue that the rules of authority are most directly expressions of perceptions relating to adjudicatory jurisdiction, as demonstrated by the rule of jurisdiction, for Israeli courts and for foreign courts, in matters in personam which revolves round the notion that in the absence of any other link between the defendant and the adjudicating State, his presence in its territory to receive summons is sufficient.

Two apparent exceptions to the general principle in property matters are the broad jurisdiction in succession and marital property claims Jurisdiction over the entire estate of a deceased may be given to an Israeli court on the basis of his Israeli domicile, or on the basis that some of his property is present in Israel on his death (sec 41). The anomalous breadth of jurisdiction is counterbalanced by the rule that when property is situated outside Israel, the lex domicilu which governs succession to the entire estate is subject to any mandatory prescription in the lex situs. More importantly, however, such proceedings are generally speaking declaratory and not constitutive (see, for example, sec. 1 of the Succession Law, 1965, 19. L. S. I. 58). The broad jurisdiction is consequently exceptional only when the system of the State in which the property is located regards the judicial decision alone as transferring property rights to the heirs The deference to the lex situs – the general rule of authority for the transfer of property rights – covers both the declaratory possibility and the rare occasions on which the court will be fulfilling a constitutive function Similarly, a claim in marital property may be pursued in Israel, regardless of the identity of the parties or the situs of the property (subject to the ordinary rules of international jurisdiction). This claim, however, is also treated by the proposal as a special type of transitory claim rather than a constitutive property claim and is subjected to the lex domicilu. But here too the claim that a property right has already been acquired by either of the parties will be examined under the lex situs which again has exclusive control over the creation and transfer of property rights in accordance with the general principle.

61 Sec 21(c).

62 The cases provided for in sec 57 all fit this definition. They correspond to Rule 500 of the Rules of Civil Procedure 1984, (1984) K.T. no. 2685, p. 2220.

63 Sec. 74. The coordination of rules in this context is especially to be noted in the light of the situation now prevailing in Israeli law in which the defendant will be regarded as having subjected himself to local adjudicatory authority far more easily than to foreign adjudicatory authority (for the purpose of recognising foreign judgments). Thus, for example, while Israeli courts are authorised to summon, and deliver judgment against, defendants whose only relation to Israel is that they made a contract or performed a civil wrong in Israel (Rules 500(4)(a), 500(7) of the Rules of Civil Procedure, 1984), the common law rule would not regard such circumstances as constituting submission in the sense required for recognition of foreign judgments (Cheshire and North, supra n. 11, at 642). It is of course possible that the notion of submission will be interpreted differently for the purposes of foreign judgments and for those of local international jurisdiction. But the proposal clearly deviates from existing law which dinstinguishes the two by applying virtually the same test in each context.

64 Secs. 73, 90. On succession and matrimonial property see supra n. 60. It is noteworthy that neither of these would be regarded as exceptions to this rule, since in neither case would the court be performing a constitutive act. It would merely declare and recognise pre-existing property rights. A notable deviation from the principle is, however, found in the provision dealing with dissolution of marriages. The proposal retains the provisions of the Matters of Dissolution of Marriage (Jurisdiction in Special Cases) Law, 1969, in sec. 91. A curious feature of this law is that while it was designed to provide means for dissolving marriages otherwise indissoluble because of the system of exclusive religious jurisdiction in such matters, it in fact gives Israeli courts the power to dissolve the marriage of virtually any couple in the world, since the President of the Supreme Court is empowered to designate a court to dissolve the marriage of any couple not subject to the exclusive jurisdiction of any other court. This covers not only the cases of mixed marriages, for which the law was designed, but also many other cases, since there is no requirement that the couple be related in any way to Israel and since Rule 500(9) of the Rules of Civil Procedure permits courts to grant service of summons abroad for such cases. It is of course unlikely that the President of the Supreme Court would exercise his power in the absence of any significant relationship to Israel, and it is even more unlikely that a judgment given in such circumstances would be recognised abroad since Israel would be regarded as lacking international jurisdiction. (The rules of choice-of-law provided for this eventuality would be of no avail, even under the view that a decision according with the personal view of the parties should be recognised, since the law, and the proposal in its wake, permits the court to deviate from the domiciliary law of the parties and among other things to dissolve the marriage by consent, regardless of the parties' personal law.).

65 In the English common law, the objective proper law of the contract is often thought to control those aspects of the contract which the parties are not competent to control themselves. It thus has a functional significance and is not simply an alternative way of identifying the proper law in the absence of party choice, as it is here. See supra n. 12

66 Levontin, supra n. 12, at 108.

67 Since these will be pleaded against what is regarded by Israeli law as a contract, in the form of a defence, the opportunities for relying on them are generally formulated as choice rules for claims brought to undermine the contractual obligation, rather than as choice rules for particular topics. Thus, instead of “Capacity is governed by the personal law”, the rule here is formulated as “A claim that a party had no ability to perform a legal act… will be examined under….” (my, informal, translation – C.W.F.).

68 See, for example, Cheshire and North, supra n. 11, at 201ff.

69 On the issue of formation. Cheshire and North, ibid. at 212ff; on the question of formal validity, ibid., at 219, and Batiffol – Lagarde, supra n. 11, at paras. 595, 599; on the issue of capacity, Cheshire, and North, ibid. at 221, and Batiffol – Lagarde, ibid., at paras 487, 595.

70 No other law is relevant to the question of legality, not even the proper law of the contract, which applies by virtue of and subject to the will of the parties, no provision inconsistent with which can be relevant. The only interest any other system may have in the legality of such a contract might be if the contract required that an act, illegal under its law, be performed. For such cases, as a matter of public policy, the proposal provides that no contract designed to injure a friendly State and no contract whose performance involves the breach of a law of a friendly State in its territory shall be enforced.

71 Sec. 6.

72 The control of the personal law is rarely, however, exclusive. See, for example, Wolff, supra n. 12, at 280ff.

73 Sec. 6(1)(d) defines lack of ability as including any restriction on the ability to create a binding obligation, any restriction capable of founding a claim that the act had no legal significance. Rules of form, or substantive requirements, in the absence of which no obligation can be perfected are then clearly included.

74 Levontin, supra n. 12, at 101.

75 This is not the only place where internal classifications will differ from those made for the purposes of choice-of-law. Thus, for example, a procedural classification for domestic purposes is made in view of rules of prescription and jurisdiction, while for international purposes it is made exclusively in view of the rule that procedural matters are governed by the law of the forum. Consequently, a rule which is regarded as procedural for internal purposes may justifiably not be so regarded for the international function.

76 Sec. 6(2).

77 The exceptional cases in which the personal law of the other party will determine the validity of the contract are designed to eliminate any injustice anticipated by the use of the personal law, rather than, for example, the traditional law of the place of contracting, which provided an alternative way in which to validate the contract. Thus, for example, in addition to the cases in which the defendant acted outside his own home State in circumstances in which the plaintiff did not and need not have known of the disability, the proposal provides for cases in which the defendant acted outside his home State and the disability is neither related to any particular status of the defendant nor designed to protect him (but rather to effectuate other policies such as security of land transactions, etc.), or it is such as should not insulate the actor from renumerating services rendered. In such cases, the proposal regards it as unjust to recognise a disability if this would be contrary to the legitimate expectations of the other contracting party as formulated in his personal law. Only if that law too would free the defendant of any obligation, will the contract be regarded as void. Where Israeli law would apply as the personal law of the defendant, and the act took place outside Israel in any of the circumstances mentioned, the law of the other party would be consulted and any Israeli disability might be ignored. Where on the other hand, Israeli law were to apply as the law of the other party (in other words, when the party whose disability is relied on acted outside his domicile in the circumstances described), its domestic provisions would control. Israeli law does ascribe importance to the law of the place of contracting as influencing the legitimate expectations of such an Israeli party, and consequently, the defendant would, under Israeli law, never be bound any less than he would be under the whole law of the place of contracting.

78 See n. 77 supra. It is suggested that in many cases the proposal would produce the same results as the present system, but on a more coherent and principled basis. Furthermore, while some of the results of the proposed scheme would differ from those obtained under the present scheme, mainly as a result of the absence of an objective proper law, such differences are justifiable in terms of principle. Thus for example, a contract between parties both of whom are unable, under the whole of their respective personal laws, to contract in the way in which they did – would not be saved, as it might today, by a third system to which the contract is “significantly related” and in which the parties are not so disabled. The proposal does not regard Israel as competent to create an obligation by reference to a law which the personal laws of the parties would both regard as irrelevant in assessing their ability to contract. When, in other words, neither of their personal laws would regard the circumstances (including the relation of that third system of law to the contract) as requiring that one party be protected from the disability of the other and that the contract be regarded as valid, Israeli law can have no interest in itself protecting him and creating an obligation ex nihilo. Once free of the notion that the proper law of the contract can be identified independently of the will of the parties, and that it can control the contract from without, this is surely an eminently just result.

79 In European doctrine the dominance of the lex loci delicti is firmly established (Morse, supra n. 23, at 24, Vitta, supra n. 8, at 329ff., Batiffol – Lagarde, supra n. 11, at paras. 557, 562ff. This rule is limited in German law by the provision that German defendants shall never be exposed to liability greater than that which would be imposed on them in similar circumstances under German law (art 12 EGBGB). In the United States it was recognised as the appropriate rule by Justice Holmes in Slater v. Mexican National Rail Co, 194 U.S. 120 (1904) and it reigned supreme until the critics of traditional methodology encouraged deviation from it as an exclusive rule of choice for torts In England, the lex loci delicti has never enjoyed primacy, and its place in this area of choice-of-law, while generally acknowledged, has never been quite clear. The balance between the two parts of the Willes formula in the choice-of-law rule formulated in Phillips v. Evre (1879) L.R. 4 Q.B. 225 has been much debated and even, or perhaps especially, after Chaplin v Bovs, supra n. 44, the situation in English law is far from clear (see Morse, supra n. 23, at 278ff).

80 As in the case of contractual obligations, it is clear that the proposal envisages the possibility of claiming a right acquired under foreign law to compensation for damage caused by a civil wrong. Tort claims, as transitory claims, do not have to be pursued exclusively under Israeli law. Any law answering the qualifications set by the rule of authority for rights in personam can found such a claim – namely, the whole personal law of the defendant and the whole law of any system which he subjected himself to The relevant question to be answered by the courts will be, in what circumstances will a defendant be regarded as having subjected himself to a system in such a way as empowers it, in our view, to impose an obligation on him. The lex loci delicti might well recapture some of its significance in this context.

81 Secs. 10(d), 11, 13, p. 48 of the Hebrew version of the Explanatory Notes.

82 See, for example, sec 9 of the Civil Wrongs Ordinance (New Version), 1968 (2 L.S.I. [N.V.] 5).

83 Secs. 10(d), 11.

84 Sec. 11(b).

85 The right that a contractual right not be interfered with is a right in rem. It is not the existence of the contract but rather its force vis-à-vis third parties that is at issue. See p. 51 of the Hebrew Explanatory Notes.

86 Sec. 11(a) Generally speaking, this will be wherever the debtor is located. The proposal provides for the exceptional case where the obligation is embodied in a document, when the location of the document determines the situs of the obligation.

87 Sec. 11(c) Allowing the personal law of the plaintiff to grant him such a right can be understood only in the light of the distinction between the right not to be injured and the obligation imposed on the defendant to honour that right. The plaintiffs personal law may grant its subjects rights as it wishes, those not subject to that law are not, however, necessarily bound by it.

88 Sec. 13. This section is the reflex of sec. 21 (c) which defines the laws authorised to create rights in personam as the personal law of the defendant and any law to which he has subjected himself with reference to the right claimed.

89 The traditional debate over the role of the lex loci delicti is concerned with whether or not it should have a central role; here, it never has a central role, and the provisions reflect a perception that it is merely one of the laws which contribute to the shaping of the parties' expectations.

90 Sec. 8.

91 Sec. 9.

92 Sec. 46.

93 Sec. 43.

94 Sec. 42. Sec. 21(c) defines the laws authorised to grant the plaintiff a right in personom as the personal law of the defendant and any law to which he has subjected himself. Sec. 42 defines the law which the defendant will be regarded as having subjected himself to, for the purposes of a claim of unjust enrichment, as the law of the place in which the benefit was received.

95 Secs. 21, 45, 57, 58, 59, 60.

96 Secs. 73, 74, 90.

97 The structure of the proposal also explains why the traditional debates appear somewhat out of focus here, since they are adapted to the peculiar needs of this model and are no longer general and disparate abstract questions.

98 Traditional models equate internal systemic harmony with the use of parallel concepts and terminology in domestic and private international law, because they rely on the now mistaken assumption that all systems have the same institutional structure, and that they differ only over details of substance within those institutions. While such an equation contributes to international harmony if the assumption of similarity is correct, it makes international harmony virtually unattainable in the reality of diverse systems.

99 Sack, A., “Conflict of Laws in the History of English Law”, in Law A Century of Progress (New York, 1937) vol. 3, p. 342, Dicey – Morris, supra n. 13, at Rule 40, Cheshire and North, supra n. 11, at 364–365.

100 Wolff, supra n. 12, at 64ff, explains the distinction in English law between actions in rem and actions in personam as a function of the scope of the judgment's power to bind parties and strangers to the action in the sense of res judicata and, like the standard textbooks in private international law, discusses the rules of jurisdiction for each type of action separately. In The Forms of Action at Common Law (1909, reprinted 1981) 6, Maitland distinguishes real actions – where the plaintiff claims title to real property – from personal actions – where he claims a debt or damages.

Constitutive decisions on matters of status were subject to the control of the ecclesiastical courts until 1857, and were in no way part of the very technical common law definition of real actions which was bound up in the complexities of English property law Nonetheless, they resemble real actions both in their scope as res judicata, and in the importance attached, in the junsdictional and the choice-of-law spheres in both areas, to exclusive, local control.

101 Re United Railwavs of the Havana and Regla Warehouses, Ltd (1960) Ch. 52, at 97, Dicey – Morris, supra n. 13, at 73

102 This view is explicit in American law. See, for example, Cuba Railroad Co. v. Crosby, 222 U.S. 473 (1911), where Justice Holmes mentioned acts which in any civilised system of law would be regarded as giving rise to “rudimentary obligations” as constituting an area in which the presumption might reasonably be applied, implying that other areas, more intimately related to specific substantive views of justice are not so conducive to the presumption. Such areas might still be in the area of obligations, but might be less susceptible to the presumption because of their more complex nature. Thus, for example, while it is reasonable to assume that receiving money as a loan and promising to repay it creates an obligation to return the money, it is less reasonable to assume that a promise to marry creates a legal obligation. On the elaboration of this restriction in Israeli law see Shava, supra n. 55. In English law the restrictions are more limited. Thus, the presumption will not be applied when the foreign system of the law is not based on the common law (Guepratte v. Young (1851) DeG. & Sm. 217) and when the relevant forum law is statute law (Purdom v. Pavey (1896) 26 S.C.R. 412, at 417; Schnaider v. Jaffe (1916) 7 C.P.D. 696).

103 Stein, supra n. 2, at 85.

104 In traditional theory the rule concerning renvoi and, for example, the rule concerning proof of foreign law do not seem to be related. It is only when it is realised that they both rely on the distinction between obligations and other rights that they become coherent and the relationship between them becomes apparent.

105 See, for example, Kahn-Freund, supra n. 11, at 12–15, 320.

106 Stein, supra n. 2, at 87; Maine, H., AncientLaw (Everyman's Library, repr. 1977) 15ff.

107 Originally, when choice-of-law dealt with substantive differences between the statute laws of various Italian principalities, all of whom shared the dominant tradition of Roman law as a common law, the specific institutions on which the traditional model was indeed based shared concepts fundamental to all systems. As legal systems developed independently, the differences between them increased in number and in scope, and today the only common basis that can be found between admittedly sovereign systems consists in the more general juridical analysis of the relations created by such institutions.

108 The traditional model would also recognise claims of any specified kind only from a designated law, but since neither the classification nor the designation is based upon any coherent explanation of the reasons and the purposes for which foreign law might be relevant, this feature can have no implications for the methodological problems. For a full exposition of the uses of foreign law see Levontin, supra n. 17, at 15ff.

109 Baty, T., Polarized Law (1914) 5, cited in Morris, supra n. 10, at 8.

110 Kahn-Freund, supra n. 11, at 320.

* Lecturer, Faculty of Law, The Hebrew University of Jerusalem.

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