Lex situs
Encyclopedia
The term lex situs refers to the law
of the place in which property
is situated for the purposes of the conflict of laws
. For example, property may subject to tax
pursuant to the law of the place of the property or by virtue of the domicile
of its owner. Conflict is the branch of public law
regulating all lawsuit
s involving a "foreign" law element where a difference in result will occur depending on which laws are applied.
and all the main features of the case are local, the court will apply the lex fori
, the prevailing municipal law
, to decide the case. But if there are "foreign" elements to the case, the forum court may be obliged under the conflict of laws system to consider:
The lex situs is a choice of law rule applied to identify the lex causae
for cases involving title to, or the possession and use of property. In law
, there are two types of property:
Properly speaking, the term lex situs is applied only to immovable property and lex loci rei sitae
ought to be used when referring to the law of the situs of movable property but this distinction is less common today and is ignored for the purposes of the conflict pages on the Wikipedia. Land has traditionally represented one of the most important cultural
and economic forms of wealth in society
. Because of this historical significance, it is vital that any judgment affecting title to or the use of the land should be enforceable with the minimum of difficulty. Hence, compliance with the lex situs should produce a judgment in rem
. The choice of law rules are as follows:
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
of the place in which property
Property
Property is any physical or intangible entity that is owned by a person or jointly by a group of people or a legal entity like a corporation...
is situated for the purposes of the conflict of laws
Conflict of laws
Conflict of laws is a set of procedural rules that determines which legal system and which jurisdiction's applies to a given dispute...
. For example, property may subject to tax
Tax
To tax is to impose a financial charge or other levy upon a taxpayer by a state or the functional equivalent of a state such that failure to pay is punishable by law. Taxes are also imposed by many subnational entities...
pursuant to the law of the place of the property or by virtue of the domicile
Domicile (law)
In law, domicile is the status or attribution of being a permanent resident in a particular jurisdiction. A person can remain domiciled in a jurisdiction even after they have left it, if they have maintained sufficient links with that jurisdiction or have not displayed an intention to leave...
of its owner. Conflict is the branch of public law
Public law
Public law is a theory of law governing the relationship between individuals and the state. Under this theory, constitutional law, administrative law and criminal law are sub-divisions of public law...
regulating all lawsuit
Lawsuit
A lawsuit or "suit in law" is a civil action brought in a court of law in which a plaintiff, a party who claims to have incurred loss as a result of a defendant's actions, demands a legal or equitable remedy. The defendant is required to respond to the plaintiff's complaint...
s involving a "foreign" law element where a difference in result will occur depending on which laws are applied.
Explanation
When a case comes before a courtCourt
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
and all the main features of the case are local, the court will apply the lex fori
Lex fori
Lex fori is a legal term used in the conflict of laws used to refer to the laws of the jurisdiction in which a legal action is brought...
, the prevailing municipal law
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
, to decide the case. But if there are "foreign" elements to the case, the forum court may be obliged under the conflict of laws system to consider:
- whether the forum court has jurisdictionJurisdictionJurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
to hear the case (see the problem of forum shoppingForum shoppingForum shopping is the informal name given to the practice adopted by some litigants to get their legal case heard in the court thought most likely to provide a favorable judgment...
); - it must then characteriseCharacterisation (conflict)In conflict of laws, characterisation is the second stage in the procedure to resolve a lawsuit involving a foreign law element. This process is described in English law as classification and as qualification in French law...
the issues, i.e. allocate the factual basis of the case to its relevant legal classes; and - then apply the choice of lawChoice of lawChoice of law is a procedural stage in the litigation of a case involving the conflict of laws when it is necessary to reconcile the differences between the laws of different legal jurisdictions, such as sovereign states, federated states , or provinces...
rules to decide which law is to be applied to each class.
The lex situs is a choice of law rule applied to identify the lex causae
Lex causae
In the conflict of laws, lex causae is the law or laws chosen by the forum court from among the relevant legal systems to arrive at its judgement of an international or interjurisdictional case....
for cases involving title to, or the possession and use of property. In law
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
, there are two types of property:
- Real property is land or any permanent feature or structure above or below the surface. OwnershipOwnershipOwnership is the state or fact of exclusive rights and control over property, which may be an object, land/real estate or intellectual property. Ownership involves multiple rights, collectively referred to as title, which may be separated and held by different parties. The concept of ownership has...
of land is an aspect of the system of real property or realty in common lawCommon lawCommon law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
systems (immovables in civil lawCivil law (legal system)Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
systems and the conflict of laws). - All other property is considered personal property or personalty in common law systems (movables in civil law systems and the conflict of laws), and this property is either tangible or intangible, i.e. it is either physical property that can be touched like a computer, or it is an enforceable right like a patentPatentA patent is a form of intellectual property. It consists of a set of exclusive rights granted by a sovereign state to an inventor or their assignee for a limited period of time in exchange for the public disclosure of an invention....
or other form of intellectual property.
Properly speaking, the term lex situs is applied only to immovable property and lex loci rei sitae
Lex loci rei sitae
The lex loci rei sitae is a doctrine which states that the law governing the transfer of title to property is dependent upon, and varies with, the location of the property for the purposes of the conflict of laws...
ought to be used when referring to the law of the situs of movable property but this distinction is less common today and is ignored for the purposes of the conflict pages on the Wikipedia. Land has traditionally represented one of the most important cultural
Culture
Culture is a term that has many different inter-related meanings. For example, in 1952, Alfred Kroeber and Clyde Kluckhohn compiled a list of 164 definitions of "culture" in Culture: A Critical Review of Concepts and Definitions...
and economic forms of wealth in society
Society
A society, or a human society, is a group of people related to each other through persistent relations, or a large social grouping sharing the same geographical or virtual territory, subject to the same political authority and dominant cultural expectations...
. Because of this historical significance, it is vital that any judgment affecting title to or the use of the land should be enforceable with the minimum of difficulty. Hence, compliance with the lex situs should produce a judgment in rem
In rem
In rem is Latin for "against a thing." In a lawsuit, an action in rem is directed towards a piece of property rather than against a person . The action disputes or seeks to transfer title to property. When title to real estate In rem is Latin for "against a thing." In a lawsuit, an action in rem...
. The choice of law rules are as follows:
- immovables, by definition, do not move and so the identification of the lex situs will not present a problem in the majority of cases;
- because movables may be portable, the lex situs is the law of the state in which the personalty is resident at the time the case is heard.
See also
- Lex loci celebrationisLex loci celebrationisThe lex loci celebrationis is the Latin term for "law of the place where the marriage is celebrated" in the conflict of laws. Conflict is the branch of public law regulating all lawsuits involving a "foreign" law element where a difference in result will occur depending on which laws are...
- Lex loci contractusLex loci contractusIn the conflict of laws, the lex loci contractus is the Latin term for "law of the place where the contract is made".-Explanation:When a case comes before a court and all the main features of the case are local, the court will apply the lex fori, the prevailing municipal law, to decide the case...
- Lex loci delicti commissiLex loci delicti commissiThe lex loci delicti commissi is the Latin term for "law of the place where the delict [tort] was committed" in the conflict of laws. Conflict of laws is the branch of law regulating all lawsuits involving a "foreign" law element where a difference in result will occur depending on which laws are...
- Lex loci solutionisLex loci solutionisThe lex loci solutionis is the Latin term for "law of the place where relevant performance occurs" in the conflict of laws. Conflict is the branch of public law regulating all lawsuits involving a "foreign" law element where a difference in result will occur depending on which laws are...