Nature and Situs of Property

• Author: Stephen G.A. Pitel; Nicholas S. Rafferty
• Pages: 324-329

CHAPTER

16

NATURE

AND

SITUS

OF

PROPERTY

A.

DISTINCTION

BETWEEN

MOVABLE

PROPERTY

AND

IMMOVABLE

PROPERTY

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

Tom



lin

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

property

which

is

moveable,

and,

except

to

this

extent,

does

not

any

more

than

the

English

law

recognize

for

internal

purposes

the

an



tithesis

between

moveable

and

immoveable.

But

each

system,

when

brought

into

contact

with

a

foreign

system,

does,

in

accordance

with

the

principles

of

what

is

called

private

international

law,

recognize

the

antithesis

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

1

[1932]

SC

79

at

84

(HL).

324