Lex Fori (Extended)

Lex fori
From Wikipedia, the free encyclopedia

Jump to: navigation, search Lex fori (Latin for the laws of a forum) 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.[1] When a court decides that it should, by reason of the principles of conflict of law, resolve a given legal dispute by reference to the laws of another jurisdiction, the lex causae, the lex fori still govern procedural matters.[2]
Lex causae
Jump to: navigation, search
In the conflict of laws, lex causae (Latin: lex+causa, "cause [for the] law") 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. The term refers to the usage of particular local laws as the basis or "cause" for the ruling, which would itself become part of referenced legal canon. Conflict of laws regulates all lawsuits involving "foreign" law, where the outcome of a legal action will differ based on which laws are applied. Once the forum court has ruled that it has jurisdiction to hear the case, it must then decide which of the possible laws are to be applied.
[edit] Explanation
When the parties and the causes of action are local, the court will apply the lex fori, the prevailing municipal law. If there are "foreign" elements to the case, the forum court should under the conflict of laws consider whether it should apply one or more foreign laws. For example, suppose that a person domiciled in Scotland and a person habitually resident in France, both being of the Islamic faith, go through an Islamic form of marriage in Egypt while on holiday. This ceremony is not registered with the Egyptian authorities. They establish a matrimonial home in Algeria where they buy a house in the husband's name. The relationship breaks down and the wife returns to Scotland. When she hears that the husband is proposing to sell the house, she goes to the courts in Scotland. Is this:
a case involving title to land where the lex situs, the law of the place where the land is situated, will be applied;
a case to decide whether the Egyptian ceremony created a valid marriage under the lex loci celebrationis, the law of the place where the marriage was celebrated; a case to decide whether she has the status of a wife and so may seek matrimonial relief under the lex domicilii, the law of her domicile; or a case to seek divorce in which case the lex fori substantive family law will apply?
Assuming that the three relevant laws (the domicile and the forum is in Scotland) would give different results, the choice of the lex causae assumes major significance (see also incidental question).
Lex loci celebrationis

The ''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 applied.
[edit] 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. But if there are "foreign" elements to the case, the forum court may be obliged under the conflict of laws system to:
1. consider whether the forum court has jurisdiction to hear the case (see the problem of forum shopping); 2. characterise the issues, i.e. allocate the factual basis of the case to its relevant legal classes; and 3. apply the choice of law rules to decide which law is to be applied to each class.
The lex loci celebrationis is a choice of law rule applied to cases testing the validity of a marriage. For example, suppose that a person domiciled in Scotland and a person habitually resident in France, both being of the Islamic faith, go through an Islamic marriage ceremony in Pakistan where their respective families originated. This ceremony is not registered with the Pakistani authorities but they initially establish a matrimonial home in Karachi. After a year, they return to Europe. For immigration and other purposes, whether they are now husband and wife would be referred to the law of Pakistan because that is the most immediately relevant law by which to decide precisely the nature of the ceremony they went through and the effect of failing to register it. If the ceremony was in fact sufficient to create a valid marriage under Pakistani law and there are no public policy issues raised under their personal laws of lex domicilii or habitual residence, and under the lex fori, they will be treated a validly married for all purposes, i.e. it will be an in rem outcome.
Lex loci contractus

In the conflict of laws, the lex loci contractus is the Latin term for "law of the place where the contract is made".[1]
Contents
[hide]

1 Explanation 2 Implications of the law 3 Determining lex loci contractus at law 4 References 5 See also
[edit] 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. 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 jurisdiction to hear the case (see the problem of forum shopping); it must then characterise the issues, i.e. allocate the factual basis of the case to its relevant legal classes; and then apply the choice of law rules to decide which law is to be applied to each class.
The lex loci contractus is one of the possible choice of law rules applied to cases testing the validity of a contract. For example, suppose that a person domiciled in Canada and a person habitually resident in France, make a contract by e-mail. They agree to meet in New York State to record a CD of hip hop music. The possibly relevant choice of law rules would be:

the lex domicilii and law of habitual residence to determine whether the parties had the capacity to enter into the contract; the lex loci contractus which could be difficult to establish since neither party left his own jurisdiction (reliance on postal rules for offer and acceptance in the several putative leges causae might produce different results);
the lex loci solutionis might be the most relevant since New York is the most closely connected to the substance of the obligations assumed; the proper law; and the lex fori which might have public policy issues if, say, one of the parties was an infant.
[edit] Implications of the law

The provisions of this legal concept can be construed to confirm the following:[2]

If a contract is valid where it was consummated, it is (generally) valid everywhere (i.e. in all comity states); If a contract is void where it was consummated, it is void everywhere (i.e. in all comity states); An exception in comity exists: The agreement will not be held valid in the forum country if it violates the law of the forum country, or if it violates the law of nature, or if it violates the Law of God; A contract may be deemed valid in lex loci contractus, but if it is a revenue law of that state it will not be enforced in the forum state.
If a contract is consummated in one state but its content specifies that it is to be carried out in another state, two loci are thus generated: locus celebrate contractus (where it was signed) and locus solutionis (where it is to be performed). The laws of the locus celebrate contractus state will govern all matters concerning the mode of constructing the contract, the meaning of each factor therein, the nature of the contract, and its validity. The laws of the locus solutionis state will apply to the performance or execution of the contract.
[edit] Determining lex loci contractus at law

Sometimes the locus celebrate contractus state is difficult to determine, for example if the contract was signed at sea or on a moving train, or if the details of the contract signing were not well-documented. If a court is called upon to determine the applicable state, it may use any or all of the following factors:

The residence or main domicile of the signatory parties; The main place of business of the signatory parties; The state in which the business was incorporated; The state nominated for arbitration proceedings in case of a conflict (lex loci arbitri); The language used to write the contract; The format of the contract (only relevant if the contract format is unique to a state or group of states within the comity group); The currency in which payment for performance of the contract is specified to be paid; The nation of registration of any ship involved in performance of the contract; The state where completion of the contract is specified to occur (lex loci solutionis); A pattern of similar contracts involving the same parties; The state where any third parties to the contract are located; The state where any insurance companies connected with the contract are located.
Lex loci delicti commissi

The lex loci delicti commissi is the Latin term for "law of the place where the delict [tort] was committed"[1] 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 applied. The term is often shortened to lex loci delicti.
Contents
[hide]

1 Explanation 2 Reasoning for applicability 3 References 4 See also
[edit] Explanation
When a case comes before a court and the parties and the causes of action are local, the court will apply the lex fori, the prevailing municipal law, to decide the case. However, if there are "foreign" elements to the case, the forum court may be obliged under the conflict of laws to consider the following issues:

It adjudicates whether the forum court has jurisdiction to hear the case (see forum shopping); It subsequently applies the choice of law rules to decide the lex causae, that is, which law is to be applied to each cause of action.
The lex loci delicti commissi is one of the possible choice of law rules applied to cases arising from an alleged tort. For example, suppose that a person domiciled in Australia and a person who resides in Albania exchange correspondence by e-mail that is alleged to defame a group of Kurds resident in Turkey. The relevant choice of law rules would be:
The lex loci solutionis (law of the place where relevant performance occurs) might be the most relevant, but it leaves the laws of Australia, Albania, and Turkey equally applicable. That is, the parties corresponded from two states but the damage was not sustained until the correspondence was published in Turkey; The proper law is the law which has the closest connection with the alleged misconduct; and The lex fori which might have public policy issues if, for example, one of the parties was an infant, or multiple jurisdictions may be involved over global internet use.
[edit] Reasoning for applicability

In a case where a US citizen on vacation in Mexico was injured when he fell into a hotel construction excavation (while climbing a mound of dirt to obtain a better view of the construction activity), he attempted to sue the hotel's owners in a US court. The US court rejected the suit, asserting lex loci delicti. The man appealed the trial court's finding, but the appeals court sided with the trial court.[2] The appeals court judge (Judge Posner) supported his decision with a vigorous explanation of why the lex loci rule should apply: "The jurisdiction in which the accident occurs] is the place that has the greatest interest in striking a reasonable balance among safety, cost, and other factors pertinent to the design and administration of a system of tort law. Most people affected whether as victims or as injurers by accidents and other injury-causing events are residents of the jurisdiction in which the event takes place. So if law can be assumed to be generally responsive to the values and preferences of the people who live in the community that formulated the law, the law of the place of the accident can be expected to reflect the values and preferences of the people most likely to be involved in accidents . . ." Two Harvard University Law professors examined the Judge's reasoning, and while agreeing with it in principle, articulated several different points of rationale for applying local law to local incidents:[3]
Under the economic theory of accident law, compensatory damages should be relative to the social harm caused by an accident, and that level of harm can best be determined by application of the local laws governing that area; The perceived economic value of life and limb varies from state to state; The optimal amount of medical care for an injured person (and thus the required cash compensation) will vary from state to state; Specific standards of precautions against particular classes of injuries or accidents will differ between states, because of differences in population density, climatic factors, economic factors, differing perceptions of risk etc.
Lex loci rei sitae

The lex loci rei sitae (Latin: law of the place where the property is situated) 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. 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 applied.
[edit] Explanation

The lex loci rei sitae is a choice of law rule applied to identify the lex causae for cases involving title to, or the possession and use of personal property. In law, there are two types of property:
Real property is land or any permanent feature or structure above or below the surface. Ownership of land is an aspect of the system of real property or realty in common law systems (immovables in civil law 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 patent or other form of intellectual property.
Lex situs
The term lex situs (Latin) 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 lawsuits involving a "foreign" law element where a difference in result will occur depending on which laws are applied.
[edit] Explanation

whether the forum court has jurisdiction to hear the case (see the problem of forum shopping); it must then characterise the issues, i.e. allocate the factual basis of the case to its relevant legal classes; and
then apply the choice of law 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 for cases involving title to, or the possession and use of property. In law, there are two types of property:
Real property is land or any permanent feature or structure above or below the surface. Ownership of land is an aspect of the system of real property or realty in common law systems (immovables in civil law 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 patent or other form of intellectual 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:

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.
Lex loci solutionis

The 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 applied.
[edit] Explanation
whether the forum court has jurisdiction to hear the case (see the problem of forum shopping);
it must then characterise the issues, i.e. allocate the factual basis of the case to its relevant legal classes; and then apply the choice of law rules to decide which law is to be applied to each class.
The lex loci solutionis is one of the possible choice of law rules applied to cases testing the validity of a contract and in tort cases. For example, suppose that a person domiciled in Bolivia and a person habitually resident in Germany, make a contract by e-mail. They agree to meet in Arizona to research a book. The possibly relevant choice of law rules would be:

the lex domicilii, lex patriae or the law of habitual residence to determine whether the parties had the capacity to enter into the contract; the lex loci contractus which could be difficult to establish since neither party left their own state (reliance on postal rules for offer and acceptance in the several putative lex causae might produce different results); the lex loci solutionis might be the most relevant since Arizona is the most closely connected to the substance of the obligations assumed; the proper law; and the lex fori which might have public policy issues if, say, one of the parties was an infant.
Lex loci arbitri

The lex loci arbitri is the Latin term for "law of the place where arbitration is to take place" 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 applied.
[edit] Explanation

The lex loci arbitri is an element in the choice of law rules applied to cases testing the validity of a contract. As an aspect of the public policy of freedom of contract, the parties to an agreement are free to include a forum selection clause and/or a choice of law clause and, unless there is a
lack of bona fides, these clauses will be considered valid. If there is no express selection of a proper law, the courts will usually take the nomination of a forum as a "connecting factor", i.e. a fact that links a case to a specific georgraphical location. For these purposes, one of the "forums" that may be selected is arbitration. Hence, the fact that the parties have chosen a state as the place of arbitration is an indication that parties may have intended the local law to apply. This indication will be weighed alongside other connecting factors. The state that has the largest number of connecting factors will be the lex causae applied to resolve the dispute between the parties. If there is a tie, the connecting factors which relate to performance will be given a greater weighting.
Lex loci actus

lex loci actus law of the place where the act occurred that gave rise to the legal claim. This is often confused with lex loci delicti commissi which is where the tort is committed. While typically they both point to the same location, in the case of product liability, for example, the lex loci actus would be the place of manufacturing, while the lex loci delicti commissi would be the place of injury.
Lex patriae
The term lex patriae is Latin for the law of nationality in the Conflict of Laws which is the system of public law applied to any lawsuit where there is a choice to be made between several possibly relevant laws and a different result will be achieved depending on which law is selected.
[edit] Explanation

whether the forum court has jurisdiction to hear the case (see the problem of forum shopping); it must then characterise the issues, i.e. allocate the factual basis of the case to its relevant legal classes; and then apply the choice of law rules to decide the lex causae, i.e. which law is to be applied to each class.
The lex patriae is a civil law choice of law rule (in some states, the law of habitual residence is used) to test the status and capacity of the parties to the case. For example, suppose a person with a nationality in Denmark decides to take a round-the-world trip. It would be inconvenient if this person's legal status and capacities changed every time they entered a new state, that they might be considered an infant or an adult, married or free to marry, bankrupt or creditworthy, etc., depending on the laws of the place they happened to be. Assuming there are no public policy issues raised under the relevant lex fori, the lex patriae should apply to define all major issues, and so produce an in rem outcome no matter where the case might be litigated. The common law states use a test of lex domicilii (the law of domicile) to determine status and capacity. Because the lex patriae choice of law rule may select the law of a country that contains more than one legal system, there must be rules to determine which of the several possible laws might apply (e.g. a reference to the law of the United States is actually a reference to one of the U.S. states). A suparanational example of this selection process is contained in Article 19 of the Rome Convention:
States with more than one legal system 1. Where a State comprises several territorial units each of which has its own rules of law in respect of contractual obligations, each territorial unit shall be considered as a country for the purposes of identifying the law applicable under this Convention. 2. A State within which different territorial units have their own rules of law in respect of contractual obligations shall not be bound to apply this Convention to conflicts solely between the laws of such units.
Lex loci
In Conflict of Laws, the term lex loci (Latin for "the law of the place")[1] is a shorthand version of the choice of law rules that determine the lex causae.
Lex domicilii
The lex domicilii is the Latin term for "law of the domicile" 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 applied.
[edit] Explanation

whether the forum court has jurisdiction to hear the case (see the problem of forum shopping); it must then characterise the issues, i.e. allocate the factual basis of the case to its relevant legal classes; and then apply the choice of law rules to decide the lex causae, i.e. which law is to be applied to each class.
The lex domicilii is a common law choice of law rule applied to cases testing the status and capacity of the parties to the case. For example, suppose that a person domiciled in Malaysia decides to take a "round-the-world" trip. It would be inconvenient if this person's legal status and capacities changed every time they changed jurisdiction, e.g. that they might be considered an infant or an adult, married or free to marry, bankrupt or creditworthy, etc., depending on the nature of the laws of the place where they happened to be. Assuming that there are no public policy issues raised under the relevant lex fori, the domiciliary law should apply to define all major issues and so produce an in rem outcome no matter where the case might be litigated. The civil law states use a test of either lex patriae (the law of nationality) or the law of habitual residence to determine status and capacity.
Privilegium fori
The privilegium fori, Latin for "Privilege of the (legal) forum", is a generic term for legal privileges to be tried in a particular court or type of court of law. Typically, it is an application of the principle of trial by one's peers, either by such a jury or at least by a specific court from that social segment, such as a soldier by a court martial, a cleric by a canon court.

Lex Fori (Extended)

Uploaded by

Copyright:

Available Formats

Lex Fori (Extended)

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Lex Fori (Extended)

Uploaded by

Copyright:

Available Formats

Lex fori

From Wikipedia, the free encyclopedia

Lex loci celebrationis

Lex loci contractus

[edit] Implications of the law

[edit] Determining lex loci contractus at law

Lex loci delicti commissi

1 Explanation 2 Reasoning for applicability 3 References 4 See also

[edit] Reasoning for applicability

Lex loci rei sitae

Lex loci solutionis

Lex loci arbitri

Lex loci actus

You might also like