Log In Sign Up. Characterisation and the incidental question; the time factor In a case concerning foreign element, the court will have to examine various matters in sequence such as: He says, under the doctrine of renvoi as established in Re Annesley [L. In theory, the problem of time factor can arise in at least three situations- When the court is applying its own conflict of laws rules, a question may arise as to the effect of any change effected in its conflict of laws rule after, for instance, the death of the person whose succession is in issue, or after a marriage, where the issue is whether the marriage was valid. Is it to be decided of Indian law or French law? On the question of the capacity to make a will, for example, is the question to be considered with reference to the domicile of the deceased when he made the will, or when he died. Help Center Find new research papers in:
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Help Center Find new research papers in: The problem jataf characterisation of the connecting factor is given a different dimension by the authors who are inclined to accept the doctrine of renvoi- this means that they would accept the foreign characterisation so far as it is indicated by the application of the doctrine of Renvoi; Robertson, explains this by an example: The difficulty involved in the characterisation of the connecting factor may be explained by the following examples: Is it to be decided of Indian law or French law?
He says, under the doctrine of renvoi as established in Re Annesley [L. For instance in an adjudication in jataf of a contract it comes to the conclusion that the lex loci contractus is the connecting factor and again it finds that the place of connection is France; the question that still remains to be solved before the court is which French law will be applicable: Under the Indian law the place from where the acceptance of an offer is sent is the place where the contract is formed, while according to the Soviet law a contract is formed where the acceptance is received.
It would appear that no uniform generally applicable rule exists in England to cover these various situations. The two principles which, ordinarily would govern the approach of a court are obvious: Log In Sign Up. On the question of the capacity to make a will, for example, is the question to be considered with reference to the domicile of the deceased when he made the will, or when he died.
There appears, no Indian decision on these factors; the position given below is based on English law- As far as changes in the conflict of laws rules of the lex fori are considered, if the change is made by statute, it must be considered whether the statute is expressly retrospective or retrospective by necessary implication.
Characterisation of Proper law: But then which the lex loci contractus? The problem of time factor arises most acutely once the court has decided the appropriate law to be applied, and there has been a change in that law with retrospective effect- once a court in India decides, for instance, that the connecting factor is domicile, and that the deceased was domiciled in place X, should it apply the law in force in place X when vushal deceased died or also jtav into consideration a subsequent retrospective change in that law.
A case involving foreign element may place a subsidiary issue, as well as a main question before the court- once the relevant choice of law rule has jataf applied and the law to govern the main issue thereby determined, a further choice of law rule may be required to answer a subsidiary question affecting the main issue.
Lorenzen who favours application of the lex fori at the second stage of characterisation, suggests that in those cases where the forum has no connection with them except at a place of trial and if the characterisation of the two foreign countries with which the cases have connection is the same then the characterisation made by the lex causae should be accepted as it would be conducive to international harmony and there is no inescapable necessity of applying the law of the forum. The problem can also arise if a change is made in the law which the court decides is applicable, and, particularly, if the change is made with retrospective effect.
The rule of law to determine the incidental question may not be the rule of law to determine the substantial question- in the above example, whilst the lex causae to determine the visnal of succession would be the lex situs, whether W was the wife of H may depend upon the law of the place where marriage was solemnised.
Relevant time when applying the connecting factor: Changes in the lex causae: An English court is called upon to administer his estate- according to the English doctrine of reverter of domicile, the deceased died domiciled in Iowa, while according to the law of Iowa he vihal domiciled in England as under it domicile of choice continues till a new domicile is acquired.
In Krishnaveni Nagam v Harish Nagam AIR SCthe SC, referring to House of Lords decision in Spilada Maritime Case [ AC ] was of the view that in matrimonial or custody or in ivshal between parties to a marriage or arising out of disputes between parties to a marriage, wherever the respondents are located outside the jurisdiction of the court, the court where proceedings are instituted, may examine whether it is in the interest of justice to incorporate any safeguards for ensuring that summoning the respondent does not result in denial of justice.
Enter the email address you signed up with and we’ll email you a reset link. Thus, any court, which assumes jurisdiction over a case involving some foreign element, has, at the first instance, to determine whether a given factual situation gives rise to rights, or imposes obligations, or creates a legal relation or an institution or an interest in a thing- the basic question is: Skip vushal main content.
If the category is, say, succession to immovable property, the court will then decide upon the connecting factor, i. In practice, characterisation of the cause of action is effected on the basis of the law of the forum- thus by application of the principles of English law, an English judge makes an viahal of the question before him and, after determining its juridical nature in accordance with those principles, assigns it to a particular legal category- although English law principles are being applied here, the case is in fact one which contains a foreign element, and so the classification which is made will not necessarily the same as that which would be made in a purely domestic case.
Click here to sign up. In theory, the problem of time factor can arise in at least three situations- When the court is applying its own conflict of laws rules, a question may arise as to the effect of any change effected in its conflict of laws rule after, for instance, the death of the person whose succession is in issue, or after a marriage, where the issue is whether the marriage was valid.
Characterisation and the incidental question; the time factor In a case concerning foreign element, the court will have to examine various matters in sequence such as: Remember me on this computer.