Nature and Situs of Property

• Author: Stephen G.A. Pitel/Nicholas S. Rafferty
• Profession: Faculty of Law, University of Western Ontario/Faculty of Law, University of Calgary
• Pages: 307-312

307

CHAP TER 16

NATURE AND

SIT US

OF PROPERT Y

A. DISTINCTION BETWEEN MOVABLE

PROPERTY AND IMMOVABLE PROPERTY

For the purposes of private inter national law, common law courts draw

a distinction between movable and immovable property r ather than

using the dist inction, drawn for domestic pur poses, between person-

al property and real property. Thus in Macdonald v. Macdonald, Lord

Tomlin said:

The English law cla ssif‌ies property as real prop erty or personal prop-

erty. The terms moveable and i mmoveable are not techn ical terms

in English law when it is not regard ing the law of a foreign countr y.

The Scots law dist inguishes between propert y which is heritable and

property which i s moveable, and, except to thi s extent, does not a ny

more than the Engli sh law recognize for inte rnal purp oses the an-

tithesis b etween moveable and immove able. But each system, when

brought into contact with a foreign system , does, in accordance wit h

the principles of wh at is called priv ate internation al law, recognize

the antithesis for the purpose of applying the rule of comity that, in

matters of succession, move ables devolve according to the law of the

domicile of the deceas ed and immoveables de volve according to the

lex rei sitae.1

1 [1932] S.C. 79 at 84 (H.L.).