CHAPTER 16 Nature and Situs of Property

• Date: 07 April 2025

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CH AP TER 16

NATURE AND

SITUS

OF

PROPERT Y

A. DISTINCTION BETWEEN MOVABLE

PROPERT Y A ND IMMOVABLE PROPERT Y

For the purposes of private international law, common law courts draw a

distinction between movable and immovable property rather than using

the distinction, drawn for domestic purposes, between personal property

and real property. Thus in Macdonald v Macdonald, Lord Tomlin said:

The English law classif‌ies property as real property or personal prop-

erty. The terms moveable and immoveable are not technical terms in

English law when it is not regarding the law of a foreign country. The

Scots law distinguishes between property which is heritable and prop-

erty which is moveable, and, except to this extent, does not any more

than the English law recognize for internal purposes the antithesis

between moveable and immoveable. But each system, when brought

into contact with a foreign system, does, in accordance with the prin-

ciples of what is called private international law, recognize the antith-

esis for the purpose of applying the rule of comity that, in matters of

succession, moveables devolve according to the law of the domicile of

the deceased and immoveables devolve according to the lex rei sitae.1

As this quotation indicates, this distinction is particularly important in

the context of succession because of the general choice of law rule that

1 [1932] SC 79 at 84 (HL).