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

CHAPTER 16

NATURE AND

SITUS

OF PROPERTY

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 rather than

using the distinction, drawn for domestic purposes, 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 immoveable are not technical terms

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

The Scots law dist inguishes between propert y 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] S.C. 79 at 84 (H.L.).