Characterisation

The first question concerning title to property is how rights therein are to be characterised. In English domestic law they are for historical reasons categorised into real and personal property. This pays no regard to the physical characteristics of the property and the division does not coincide with a distinction between land, which is by its nature immovable, and movable objects such as a car or a diamond, which are tangible, and debts or copyrights which are intangible but nevertheless are capable of being owned. Thus in English domestic law certain interests in land such as leases are personal property, though called ‘chattels real’.

This classification, being unknown to most systems of law, since these usually categorise property as either immovable (which term includes all interests in land and the buildings thereon) or movable, is obviously wholly inapt for the purpose of the conflict of laws. Therefore, the English courts abandon their domestic classification and for that purpose adopt the distinction between immovables and movables.

Moreover, to determine whether an item of property is one or the other, classification is affected not by English notions, but according to the lex situs of the property. This is obviously sensible, since for our courts to classify it in a manner opposed to that of the lex situs would often be a waste of time, as there may be little our courts could do to enforce their ideas and solutions.