Conflict of Laws
Conflict of Laws
Conflict of Laws
Conflict of laws, a subject also known as private international law, arises from the universal acknowledgment that not every human transaction can be, or ought to be, governed by local law. The affairs of men are often conducted in such a way that a legal dispute contains a foreign element, and the conflict of laws is the systematic study of how national courts, in fact and in theory, take account of such foreign elements.
The main emphasis in the conflict of laws has generally been upon the rules used to select foreign law, these rules being called choice-of-law rules. It is also common to include in the subject matter of the conflict of laws various related matters pertaining to the jurisdiction of courts and to the degree of respect due foreign judgments, but in the main the classical problems in the field have been created by legal transactions in which the private law of more than one legal unit is potentially applicable and a choice must be made between the competing claims. For centuries judges and scholars have been baffled in their search for acceptable procedures and for the criteria with which to conduct the search itself.
There is a traditional distinction between public and private international law related mainly to whether the participants involved in legal controversy are governments or individuals. In this vein, public international law is defined as the corpus of rules binding governments in their relations with one another and the processes available for implementing these rules; private international law is considered as the law applied by domestic courts whenever a foreign element is relevant to the resolution of a legal controversy. Many specialists in this latter field of law object to the label private international law, suggesting that the law applied by domestic courts—even if it leads to the application of foreign law—is a field of national law. Such a view is especially prevalent in the United States, accounting, in part, for the currency of the term “conflict of laws” to describe the subject, although its use also reflects the emphasis among American scholars, perhaps to an excessive degree, upon the conflict of laws as it has evolved from interstate (intranational) transactions. In Europe, even in federal states, the subject, in contrast, is dominated by its international aspects, that is, by the study of the rules and processes by which the courts in one country give effect to the law of a foreign country or show respect for a judgment already reached by a foreign court.
A concrete indication of the character of the subject can be given by way of an oversimplified ,example of a legal situation calling for the application of choice-of-law rules. A Dutch sailor employed on an American ship is injured in the course of work by allegedly faulty equipment while the ship is at anchor in a Japanese port. He sues for recovery in a Dutch court and seeks application of the American law on the subject because it leads to the largest recovery with the smallest burden of proof. The American shipowner, as defendant, contends that the negligence of the seaman was the cause of the accident and argues for the application of Japanese law, which, we shall assume, is least favorable to any recovery in these circumstances and least generous in its award of damages if some recovery is allowed. Which legal system and what legal rules would be chosen by a Dutch court as providing the governing law? Would the same governing law be chosen for this kind of case by a court in the United States, the Netherlands, and Japan? Why is it so difficult to obtain uniform treatment of choice-of-law questions? Is uniform treatment necessarily desirable? What approaches dominate the analysis of choice-of-law problems in the contemporary literature? It is with questions of this sort that the field of the conflict of laws is principally concerned.
The character of the solution given to problems of the choice of law has an intense practical relevance to the lives of people. Increasingly, it is impossible to confine human happenings to a single jurisdiction. Whether in matters of personal status arising from marriage, divorce, birth, and death or in such typical commercial phenomena as the regulation of anticompetitive business practices, expropriations of alien property, and the sale of goods, there is an increasing multinational complexity that in the event of controversy may make the choice of applicable law at once crucial and far from self-evident.
Of course, the practical interest in the conflict of laws emerges as a consequence of the fact that the substantive laws of states are diverse, inconsistent, and, occasionally, contradictory. Obviously, if all substantive law were the same, it would make little difference which system of law was selected to govern a controversy. But, in a world of diverse national, cultural, and ideological perspectives, there has never been a prospect of such substantive uniformity. Widespread attention has, therefore, been given throughout the history of international relations to the method and rationale used by various courts to select the proper system of law governing controversies. It appears, at least superficially, that all states have a strong, common, and mutual interest in the adoption of uniform choiceoflaw rules. For unlike the substantive rules to which they refer, choice-of-law rules appear to seek nothing more than the ordering of relations in a fair and convenient fashion and do not seem to express any commitment to policies or values of a particular state. Despite this appearance of neutrality, however, efforts over several centuries to advance the acceptance of uniform choice-of-law rules have yielded few encouraging or tangible results.
The study of conflict of laws has been developed by lawyers and has traditionally been neglected by social scientists. This neglect can be explained, in part, by the fact that so many of the typical problems in the conflict of laws are either highly technical (for example, dealing with the devolution of property located abroad) or too humdrum (for example, concerning the status of a foreign mail-order divorce) to be either accessible or interesting to those who lack formal legal training. Even lawyers find the subject unusually complex, since it presupposes a familiarity both with the law governing a wide body of substantive problems (for example, how does the treatment of the foreign element vary when one is dealing with matters of personal status, inheritance, torts, contracts, real and personal property, etc.?) and with the laws and decisions operative in a number of foreign states with different legal systems.
Despite these obstacles, there are strong reasons why social scientists should have at least some awareness of the major trends of thought evolving in the conflict of laws. For one thing, the conflict of laws is a precursor by many centuries of the current interest in the study of conflict resolution. A vast literature has developed a whole range of techniques to adjust the conflicting requirements of local law and foreign law, and debate continues on the character of justice in the face of such conflicts.
Furthermore, the approach taken to the conflict of laws in different subject-matter areas might provide students of comparative social and political systems with an interesting insight into such concerns as the hierarchy of social values and governmental policies prevailing in different national societies. For certainly the refusal to defer to foreign law in some areas suggests the importance accorded domestic policy. The approach used to solve internal choice-of-law problems in federal states without much experience in international affairs (for example, Nigeria, Malaysia) may also be a useful way for those studying world order to gauge the acceptance of supranational sources of legal authority.
The revived interest of political scientists in the study of the role of norms in world politics clearly makes the conflict of laws relevant, for the same endeavor is at the center of both subjects: to find a just and efficient way to allocate legal authority among the actors in a multiunit social system. The conflict of laws offers the inquirer not only a parallel setting in which to study the efforts to introduce order into a social system that lacks centralized institutions, but it also provides a setting that tends to be less inflamed by political passions and therefore more susceptible to systematic analysis, concerned as it mainly is with interpersonal as distinct from intergovernmental legal disputes.
Interstate and international conflicts
It is important to distinguish the study of interstate from international conflict of laws. Rules to resolve interstate conflicts generally arise in a federal social structure which shares a traditional language and possesses an overriding organic law (constitution) and central legal institutions of interpretation and enforcement. These institutions are available to resolve serious conflicts that arise at the unit level and to set normative limits upon the discretion of a state to adopt “eccentric” or excessively egocentric rules of conflict of law. For example, the United States constitution imposes obligations on each state to give “full Faith and Credit … to the public Acts, Records, and judicial Proceedings of every other state” (Art. iv, 1); to respect “the privileges and immunities of citizens of the United States” and to grant every person “within its jurisdiction the equal protection of the laws” (xivth Amendment, §1). Although the U.S. Supreme Court has acknowledged a considerable discretion at the unit level that allows the states to adopt diverse rules for dealing with foreign facts, there exists a higher law that remains potentially available to impart unity and coherence.
In contrast, the international system is relatively decentralized, lacks an organic law, and possesses only very weak institutions for the adjustment of disputes at the internation level. In addition, the differences in ideology, stages of economic development, domestic politics, and attitudes toward individual and governmental liability from nation to nation are generally much greater than are the differences among the units in a federal state. Whereas the interstate conflict of law can depend upon the resources of the national government to promote the realization of a fair and reasonable system, the international regime for the conflict of laws is dependent to a far greater degree upon the highly decentralized ordering techniques of reciprocity, self-help, and self-restraint in order to bring a fair system of conflict of laws into being. Public international law does not exercise any very widely accepted “constitutional” function at the present time in the stabilization of private international law. It does not provide a set of limits upon national discretion that might be invoked in diplomatic negotiation or when appearing before a “higher” tribunal, for instance, the International Court of Justice at The Hague. (A regional form of legal integration, intermediate between the centralization of a federal state and the decentralization of international society, exists, especially in Europe and somewhat in Latin America, and may soon develop to the point where it will warrant separate attention.)
The distinction between the operation of choiceoflaw rules in a centralized (interstate) and in a decentralized (international) multiunit social system has many unexplored consequences. One of the most important is the difficulty of supplying juridically convincing reasons why the courts of one state should apply the law of another under certain specified circumstances. True, this is part of the wider need in international law to demonstrate how legal obligations can be binding on the national level in the absence of any supranational source of law other than agreement among states or customary usage. However, in the area of the conflict of laws neither treaty nor custom provide any generally acceptable guidelines, and with the virtual disappearance of natural-law thinking the traditional mode of explaining the basis of legal obligation is no longer very persuasive. These circumstances have prompted most commentators in recent times to regard the subject of the conflict of laws as a part of national law.
This position is reinforced by the virtually universal refusal of courts to apply the public law of foreign states to such matters as crime, taxation, or the regulation of business activities. The refusal stems primarily from a territorial notion of national sovereignty in which the public law of the sovereign reigns supreme within the boundaries of the state but nowhere else. The result of this refusal to apply foreign public law is to deny jurisdiction rather than to apply local law, except in the area of crime, where an elaborate system of extradition agreements operates as a partial substitute for the direct application of foreign criminal law.
The systematic exposition of the conflict of laws rested originally upon the assumption of a supra-nationally ordained system obligatory upon judges at the unit level. The objective of the system was to assure uniformity of result in a legal dispute regardless of where the legal action was instituted. Naturally, such an objective could be realized, given the diversity of substantive law, only if a uniform system of either substantive or choice-of-law rules could be established.
The dominant idea in the Roman legal system was that Romans were everywhere to be governed by the Roman law and that foreigners were to be governed by the jus gentium, the law of the peoples, a “superlaw” of substantive rights and duties that was assumed to be universally applicable. Thus there was no occasion to apply foreign law and no need for a system of conflict of laws. The city-states of Italy legislated on matters not covered by Roman law, and it was out of the conflict between these legislative acts (statua) that a need for some approach to selecting the governing statute was initially felt. The need was acknowledged, in part, because of the regularity with which commercial intercourse among the city-states occurred. The technique evolved by the great Roman glossators Bartolus and Baldus to resolve the problem was to classify every statute as either real (for example, land rights), or personal (for example, status of person), or mixed. Elsewhere in medieval Europe somewhat different approaches to the resolution of conflict-of-law situations developed, the character of solution depending above all on the insularity of the social order and upon its prevailing political ideology, especially concerning the proper relationship between the domestic society, its members, and foreign societies.
In France the feudal system in force gave great weight to the coutumes and to residues of earlier tribal law. The resolution of conflicts depended on whether the issue had a territorial cause of action, and came under local law, or a transitory locus to which foreign law could properly be applied. This notion of giving primacy to the customs of each place prepared the intellectual climate for an era of territorial law, which gradually displaced the earlier acquiescence to the universal claims of Roman law. The growth of territoriality was abetted by the rise of the ideology of national sovereignty, the loss of the authority of the Roman church as a unifying influence, and the gradual decline of natural law as the basis of legal obligation. These nationalizing tendencies came to intellectual fruition in the seventeenth century when Johannes Voet (1698–1704) and Ulrich Huber (1689), scholars from the Dutch provinces, fully rationalized the primacy of the territorial lawgiver by discarding any pretense of a supranational basis for deference to foreign law. To the extent that such deference was accorded, they explained it on the basis of comity, a concept that Joseph Story later carried forward in a treatise that exercised a formative influence upon the Anglo-American development of the conflict of laws (1834). England's system of common law, as the law of the realm, did not give rise to internal conflicts, and external conflict situations were so infrequent that no real approach to the conflict of laws developed.
The waves of nationalism occasioned by the French Revolution and later by the unification of Italy influenced the growth of conflict of laws, especially in those parts of the world where the continental European influence prevailed. Stress was put upon nationality, at the expense of territoriality, as the dominant connecting factor. An individual was first and foremost a Frenchman or an Italian, recipient of rights and responsible for duties under a particular national law, and only very secondarily subject to the law of the place where he happened to be. In contrast, doctrine in the common-law countries came increasingly to stress territoriality as the key variable: events were subjected to a particular law in terms of where the acts took place or where the property was located, and only a very secondary stress was given to the nationality of the actors in the process of selecting the governing legal system.
As a consequence of this division between conflicts based on the primacy of nationality and conflicts based on the primacy of territoriality it is difficult, if not impossible, to unify the conflict of laws by means of the voluntary agreement of nations through treaty. There has been some success on a regional basis on the Continent, where there is general agreement on the proper basis for solving choice-of-law issues. Several European treaties operate partly to codify and harmonize different national practices and partly to obtain uniform treatment of certain troublesome details, especially in highly technical areas, for example, the interpretation of multilateral shipping documents.
Despite the supranational origins of the conflict of law, first in the jus gentium of Roman times and later in the natural-law basis of all law, the subject has been increasingly regarded as a part of national law. This nationalization results from the diversity of national practice and doctrine, the absence of any accepted supranational doctrine of obligation, and the general dominance of positivistic thinking that requires evidence of state consent as a prerequisite to the existence of binding rules of international law. (To be valid, according to the positivists, the law must be posited by an authorized lawgiver, and those authorized in international society are the states themselves. Furthermore, their acceptance of legal obligation must be indicated either explicitly, as in treaty law, or tacitly, as in customary law.)
At the same time, however, it is widely accepted that a stable and just system of conflict of law plays a critical role in international life.
This dilemma is clearly manifest in the work of Martin Wolff, who vigorously asserts the national character of the conflict of laws: “Today undoubtedly Private International Law is national Law. There exists an English private international law as distinct from a French, a German, an Italian, private international law. The rules on the conflict of laws … differ nearly as much from each other as do those on internal (municipal) law” (Wolff  1950, p. 11). Despite the vigor of this statement Wolff, along with all but the most nationalistic of writers, is at pains to point out that justice requires that each state consider the merits of the claims put forth by potentially applicable legal systems relative to the expectations of the parties, the stability of transnational social and economic intercourse, and the realization of the legitimate interests of foreign states. Wolff puts this international aspect as follows: “Private International Law is not itself international, but it should certainly be drawn up in an international frame of mind.” One of the real jurisprudential challenges of today is to devise a satisfactory juridical account of an “international frame of mind” (ibid., p. 16).
If international law does not compel deference by a domestic court to foreign law, then it is difficult to generate a satisfactory legal basis for such deference. The problem of finding a basis is artificial to some extent, being one of the many unfortunate by-products of dichotomizing national and international law. Given the almost universal adherence to this dichotomy, however, scholars have been eager to rest the conflict of laws on some extranational legal foundation that stops short of claiming legal compulsion. The most influential of these attempts has undoubtedly been associated with the concept of comity, the traditional means by which Anglo-American courts acknowledge the policy of deference to foreign law in domestic courts and, thereby, fulfill the injunction to manifest an international frame of mind.
Comity is supposed to express the reality of a practice that is habitual and yet not clearly or formally required as a matter of legal duty. That is, a court refusing to apply foreign law would not be violating any legal duty and no foreign state would have a legal basis for complaint. However, it is so widely recognized as desirable to apply foreign law with a certain consistency that a need arises to fit the practice into a description of the workings of the legal system. It has, at the same time, become commonplace for jurists to criticize this reliance upon the idea of comity because of its ambiguity and vagueness. Since it provides guidance for neither courts nor private parties in specific cases, and since it seems to identify the process of adjudication with some type of “international etiquette,” comity makes the whole subject of the conflict of laws appear to rest upon a system of obligation no more substantial than the practice of international politeness.
In response, writers have tended in recent decades to abandon comity as the explanation for the application of foreign law, either affirming the completely national character of the conflict of law or searching for some substitute to express its international aspect. One of the most persuasive efforts to evolve a substitute for comity is found in the work of Myres McDougal and Nicholas deB. Katzen-bach. These writers approach the problems of conflicts as but a special case of the more general task in international society to divide up the competence to apply law among the territorial sovereigns that constitute international society. They argue for a form of legal order that can successfully emerge in a highly decentralized multiunit social system by being truly responsive to the demands of the units. The implication of this orientation is to urge upon domestic courts the legal duty to defer to foreign law whenever, in terms of protecting and realizing mutual freedom for national societies, it is appropriate. As Katzenbach puts it: “So long as formal authority is organized and administered territorially, there is a mutual and reciprocal interest—a 'sense of the inconveniences which would otherwise result'—in extending areas of tolerance” (1956, p. 1131). McDougal identifies law with the reasonable expectations of those participating in international life, suggesting, in contradistinction to the traditional nationalization of the conflict of laws, that it is a matter of international law to defer in appropriate circumstances to foreign law (McDougal & Feliciano 1961).
This sociopolitical approach to the study of law in international affairs eliminates such dichotomies as those between private and public international law and even calls into question the mainstay of traditional analysis—namely, the distinction between national and international law. Although this work seems certain to attract the interest of social scientists, it is regarded with great suspicion by most international lawyers, especially those in Europe, and it has not yet been properly applied to the subject matter of the conflict of laws. Instead, most theoretical attention is still focused on the problem of finding general criteria for the solution of conflict problems.
The search for general criteria
There is wide disagreement, especially in the United States, as to whether the search for general criteria is worthwhile and, if it is, what form it should take.
The critics. Albert Ehrenzweig, the author of the leading contemporary treatise in English on the conflict of laws (1962), takes the position that the whole search for general rules for the solution of conflict-of-laws problems in unsettled areas of the law has proceeded on the wrong basis. Ehrenzweig contends that all a priori approaches are bound to be deceptive because courts in practice will not be bound by overly abstract and mechanistic rules of reference that direct them to apply a certain legal system for a given class of cases (for example, the law of the place of making for contracts, the law of the place of injury for torts, and the law of the situs for real property), but will use manipulative devices to promote the just outcome of particular disputes or to give preference to local as against foreign interests. The real indicators of how a conflict problem will be solved, then, arise not from the doctrinal language used by a court to explain its decision but from the awareness of the sense of justice or bias that underlies the doctrinal explanation. Ehrenzweig thus sets for himself the very ambitious task of finding “true rules”—the living law, as distinct from the enunciated law— and asserts that only by this search can the pattern of judicial decision be made intelligible and predictable standards of result be obtained. The most fundamental rule Ehrenzweig finds is that a court will tend to apply its own law to a controversy in those situations in which it is one of several plausibly applicable laws. Thus all instances of deference to foreign law are derogations from this underlying “true rule.” Ehrenzweig's approach is based both on a critique of judicial practice (cutting through the technical or legalistic explanation to the real one) and upon an acceptance of its authoritative status (the role of a scholar is not to supply higher criteria but to analyze judicial practice so as to discover the operative criteria).
What for Ehrenzweig is a matter of pervasive methodology becomes for Brainerd Currie a matter of pervasive ideology (Currie 1963). Currie is less interested in what courts do than in developing an approach leading to what they should do, although his jurisprudential strategy is to proceed by way of very close analyses of particular cases. He believes, to overstate it some, that a court should always apply local law when the forum has a governmental interest in the outcome of the controversy and that foreign law is appropriately applied only when the forum is disinterested in the outcome. In this regard he opposes the recent tendency of courts to balance the interests of various potentially applicable legal systems and to choose the law of that legal system which has the greatest interest in the particular case. Such balancing is for Currie inappropriately undertaken by courts and is more properly a matter for legislative determination.
Currie and Ehrenzweig repudiate the traditional search in the conflict of laws for allocation criteria posited in advance, and both affirm the fundamental governance of controversies by local law. In consequence they renounce the ideal of uniformity of result. Currie not only denies the duty to defer to foreign law but also argues that courts should not defer except when they affirm both jurisdiction and disinterest. In the rare cases that satisfy these two conditions the courts cannot reach a proper decision and might just as well apply local law, or flip a coin, or dismiss the cases.
The balancers. A less extreme approach, but one that very likely accords more closely with what judges think they should be doing and seems to have the strongest following in the United States, is best exemplified by the work of Willis Reese and Elliot Cheatham (Reese 1963; Cheatham I960; Cheatham & Reese 1952) and by the tentative drafts of a second restatement of the conflict of laws under the influential auspices of the American Law Institute (1953–1965). These authors share with Currie and Ehrenzweig a distrust of the traditional stress on general solutions to conflicts problems, but they also argue for an intermediate approach whereby policy factors are grouped in any particular case so as to identify the legal system with the dominant interest in the outcome and to choose the legal result most in accord with substantial justice. Ehrenzweig, a harsh critic of this enterprise, contends that it produces vague formulas and keeps alive, despite denials, the tradition of discerning a priori forum-selecting choice-of-law rules. Reese and Cheatham defend their balancing approach on the grounds that both practice and doctrine confirm this type of analysis and that recent landmark decisions in the conflict of laws exhibit the tendency to search for criteria by which to select the most interested forum and by this means to reach the most just result.
We find, then, that the very character of the conflict of laws, its methodology, and its governing ideology have been seriously questioned in recent years. There exists no scholarly or judicial consensus on choice-of-law rules. In particular, the traditional ideals of seeking uniformity of result and of establishing equality between domestic and foreign laws have come in for heavy criticism on the grounds that such ideals are unrealistic and inappropriate, since domestic courts actually do and, in fact, should accord preference to domestic law in a situation where it is one of the applicable legal systems.
No less serious than the theoretical problems are the dilemmas facing the practitioners of private international law. Judges in courts are confronted by the operational necessity of choosing the legal system that shall govern most justly a particular controversy and of giving a satisfactory explanation of their solution on a particular occasion. Scholars through the centuries have sought to find a general solution that combines just choice-of-law rules with the universality of their acceptance. The overriding objectives are to get the just decision and to be assured that there will not be one just decision in Japan, another in Holland, and a third in the United States.
There is, unfortunately, no broad consensus as to the form a general solution should take. The problem of legal systems using nationality as the criterion versus those using territoriality has already been mentioned. (If a Frenchman lives in Brazil, is his estate properly governed by French or Brazilian law?) Furthermore, courts are less inclined to follow the dogmatic solutions proposed by scholars than to seek to do substantial justice to the parties in dispute. Therefore, a court will tend to manipulate the criteria governing the choice of laws to fulfill its view of what justice demands. A good illustration is the basic idea that a court will always apply domestic procedure even if it defers to foreign substance. This allows it to characterize as “procedure” any device that will produce the desired result.
Despite the critiques of the subject, the dominant trend continues to be the pursuit of uniformity and equality, especially if the emphasis is put upon the international as distinct from the interstate aspect of the conflict of laws. The challenge today is to find an acceptable supranational basis for promoting these ideals in a divided world composed of states with different economic, cultural, and political outlooks. This challenge cannot be met by a new global ideology but rather by a series of more modest and concrete undertakings. One of the more promising research developments consists of the comparative-law efforts to take specific inventory of the differences in both substantive standards and in choice-of-law rules and to examine the prospects for their harmonization by unilateral or multilateral action.
A sociological extension of this inquiry would be to take stock of the diverse social interests that account for differences in the conflict of laws from one national system to another and to work toward a set of solutions on the basis of mutual interests. This type of inquiry has been undertaken by Kenneth S. Carlston (1962). It draws heavily upon functional sociology, especially organization theory and systems theory. Its persuasiveness also depends on the acceptance of a new image of global unity, eloquently summarized by C. Wilfred Jenks (1958) as “the common law of mankind,” in which the nation-state is supplanted to some extent in legal consciousness by new forms of social and political order that take greater account of both international institutions and of individuals in specifying the link between law and human welfare in transnational phenomena. As might be expected, it is the powerful states that seem most reluctant to participate in this new attempt to supranationalize the conflict of laws. Such states as the Soviet Union, the United States, China, and France oppose most efforts to diminish sovereign prerogatives for the sake of an operative global system.
In conclusion, the stability and fairness of international legal undertakings seem to depend upon the strengthening of this renewed attempt to supranationalize the conflict of laws. As a result of the increasing interdependence of human activity there is a growing need for predictable outcomes in legal disputes. These outcomes should have a more substantial base than the national affiliation of the forum. Given the diversity of contemporary international society it is not realistic to seek this end by reconciling national policies so as to create a single substantive law. There is more reason for hope if the ancient quest for order amid diversity is pursued through a uniform approach to the allocation of legal competence among the national units that compose the global system. One illuminating context within which this allocation can be studied and realized is the application of choice-oflaw rules by domestic courts.
Richard A. Falk
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Conflict of Laws
CONFLICT OF LAWS
CONFLICT OF LAWS (also called Private International Law) is a branch of the law dealing with the adjudication of a matter which involves some foreign element, for instance, the fact that one of the parties is a foreign citizen, or that the matter at issue arose, wholly or in part, in another country – as in the case of a contract signed in one country and breached in another – and the like. Where there is a conflict of laws, two main questions arise: does the forum in question have jurisdiction to deal with the matter; if it has jurisdiction, what law shall be chosen to apply to the matter? The choice of laws available to the forum include the following main possibilities: (1) The personal law (lex personalis) by which the plaintiff or defendant is governed; the personal law may be determined either by the law of the party's place of domicile (lex domicilii) or by his national law (lex ligeantiae); (2) the law of the place where obligation was established, for instance, the place where the contract was concluded (lex actus; lex loci contractus); (3) the law of the place where the legal act is to be carried out, for instance, the fulfillment of a contract (lex loci solutionis); (4) the law of the place of situation of the property forming the subject matter of the dispute (lex situs); (5) the law of the place of situation of the forum seized of the dispute (lex fori). (See A.V. Dicey and J.H.C. Morris, 1967/8.)
This entry is arranged according to the following outline:In Jewish Law
Multiplicity of Legal Rules
CONCERNING THE LAWS OF MARRIAGEG
CONCERNING THE LAWS OF DIVORCE
CONCERNING LABOR LAW
CONCERNING THE LAWS OF ARTNERSHIP, LAND TENANCY ARISUT ETC.
Conflict of a Factual-Legal Nature
CONCERNING BONDS OF INDEBTEDNESS
CONCERNING THE KETUBBAH
Jewish and Non-Jewish Parties to the Same Suit
Conflict of Laws: Principles Where the Foreign Law Is Applicable
DISTINGUISHING BETWEEN MATERIAL AND PROCEDURAL LAW
LEX DOMICILII AS OPPOSED TO LEX SITUS
The subject of the conflict of laws is not a defined branch of Jewish law. This is attributable to a substantive quality of Jewish law, namely that it is a personal law purporting to apply to each and every Jew, wherever he may be – even if outside the territorial bounds of Jewish sovereignty or autonomy. For this reason the mere fact that a contract is concluded in one country but is to be fulfilled in another is of no consequence in Jewish law. Moreover, Jewish law – for the substantially greater part of its history – has functioned as a legal system generally enjoying Jewish judicial autonomy but not Jewish political sovereignty (see *Mishpat Ivri); the result has been that in suits before the Jewish courts both parties have usually been Jews, with little occasion for questions of conflict of laws to arise in relation to the personalities of the litigants (although there are isolated halakhot in this regard; see below).
Nevertheless, the fundamental problems that arise in the field of the conflict of laws occur also in Jewish law, in which they derive from two material phenomena of this legal system. One is the multiplicity of diverse customs in regard to the same subject, a fact expressed in the doctrine, "all is in accordance with the custom of the country" (ha-kol lefi minhag ha-medinah; see below). This multiplicity was already in evidence in talmudic times and became increasingly pronounced from the 10th century onward, when in the different centers of Jewish life hegemony was no longer exercised by a single center over the whole Diaspora, thus leading to the enactment of numerous local ordinances (see *Takkanot, especially Takkanot ha-Kahal), to the spread of new *customs, and to much local decision (see Mishpat Ivri). The natural outcome of this phenomenon was the problem of choosing between the different laws, for instance, when the matter at issue arose partly in one place and partly in another, not between Jewish law and other law, but between diverse customs and takkanot within the Jewish legal system. The second phenomenon which brought about the problem of conflict of laws in Jewish law has been the contact between Jewish law and secular law; from this contact there evolved the doctrine of *dina de-malkhuta dina ("the law of the land is law"), and pursuant to it the creation of a number of rules pertaining to the field of the conflict of laws.
The existence of varying rules deriving from different customs and takkanot on a particular legal subject is to be found in various fields of the law. Wherever this reality exists and the various stages of a legal obligation have to be fulfilled in different places where varying rules are practiced in regard to such obligation, the question arises whether to apply to the obligation, the law that is customary at the place and time of its establishment, or that which is customary at the place and time of its fulfillment, or any other law.
Even in ancient times varying local customs had evolved and were practiced concerning the pecuniary relations between spouses. In regard to the amount of *dowry, R. Simeon b. Gamaliel adopted the rule of "all in accordance with the custom of the country" (Ket. 6:4), and the halakhah, with reference to both the ketubbah and the dowry, was determined as follows: "a marriage without condition is transacted in accordance with the custom of the country; also the wife who has agreed to contribute (i.e., a dowry to her husband) must do so in accordance with the custom of the country, and when she comes to recover her ketubbah she recovers what is contained therein in accordance with the custom of the country; in all these and similar matters the custom of the country is an important principle and must be followed, but such custom must be widespread throughout the country" (Yad, Ishut 23:12; Sh. Ar., eh 66:11). Thus there were different customs concerning a widow's right to lodging and *maintenance from the estate; the custom in Jerusalem and Galilee was to make the continuation of this right a matter of the widow's choice, and only if she preferred to claim her ketubbah would her right to maintenance and lodging become forfeited; in Judea the custom was to leave the choice with the deceased's heirs, and if they offered to pay the widow's ketubbah, she would forfeit the right to maintenance and lodging (Ket. 4:12); the people of Babylonia and environs followed the custom of the Judeans, and those of Nehardea and environs followed the custom of the Jerusalemites and Galileans (Ket. 54a).
This diversity of custom created problems relating to the conflict of laws. In the case of a woman of Mahoza (in Babylonia) who was married to a man from the area of Nehardea, it was decided that she was governed by the law as customary in Nehardea, i.e., that the deceased's heirs could not deprive her of her rights by paying her ketubbah as mentioned (Ket. 54a). In a case in the 13th century, husband and wife were from separate towns and married in a third town; in each of the three places different customs prevailed concerning the financial obligations between spouses. Since the latter had not themselves defined these in the ketubbah, Solomon b. Abraham Adret decided that the custom to be followed in their case was that of the place of celebration of the marriage, if that was where they intended to live, otherwise the custom of the place where they intended to live; if they had not decided on the place of residence, the custom at the place where the husband was resident was to be followed, since in law the husband determines the place of residence (Tosef., Ket. 13:2; Ket. 110a–b) – "for he marries in accordance with the conditions at his own place of residence, whereto he takes her" (Resp. Rashba, vol. 1, no. 662 and cf. vol. 3, no. 433). The same conclusion was reached by other scholars on the basis of the talmudic rule concerning the woman of Mahoza who married a man from Nehardea (Nov. Ritba, Ket. 54a; see also Beit Yosefeh 66, toward the concl.; Resp. Maharashdam, Ḥm no. 327) and thus the halakhah was decided – "if a person married a woman from a certain place with the intention that she live with him at his place, the custom of his place is to be followed" (Rema to eh 66:12). In a 17th century decision it was determined that since the amount of the ketubbah was 500 gold coins in Lithuania and 400 gold coins in Poland, "the custom of the place of marriage is not followed but only that of the place of domicile" (Helkat Mehokek 66, n. 46 and Beit Shemu'el 66, n. 27); moreover, the customary law of their chosen *domicile was held to be applicable to the parties even if they had agreed that they would settle there two or three years after their marriage (ibid., 66, n. 46), and opinions were divided on the question whether to follow the custom of the place of marriage or that of the place of intended domicile in the event that the husband died before their having settled in the latter place (ibid.; Beit Shemu'el, 66, n. 27).
Some scholars held the opinion that the customary law of the place of celebration of the marriage governs the financial obligations between spouses: "a matter must be dealt with only according to [the law of] the place where the ketubbah was written, the husband having only undertaken liability therefore in accordance with the law of such place" (Resp. Ribash, no. 105). It was similarly decided in regard to differing customs deriving from the different communal takkanot relating to heritage of the dowry on the wife's death: "in all places local custom is followed, and even if they did not stipulate at the time of marriage, they are considered to have done so, for everyone who marries does so in accordance with the custom; even if he went to a place where the custom of the communities is not practiced, the law of the place where he married her is followed" (Rema to eh 118:19, based on Resp. Ribash, no. 105). Clearly, if the parties expressly stipulated that the custom of the husband's place of residence be followed, their position would be governed accordingly (see Helkat Mehokek to eh 118:19 and Beit Shemu'el, 118 n. 26, in which manner the apparent contradiction between Isserles' statements, here and in eh 66:12, is reconciled).
A dispute waged between prominent 16th-century scholars centered around the claim of Hannah Gracia Mendes – one of the *anusim (Marranos) from Portugal who had reached Turkey, where they openly reembraced Judaism – for half of her husband's estate, in accordance with the custom in Portugal, the place of celebration of the marriage. The dispute concerned the validity of an undertaking made at the time of marriage which was not celebrated in accordance with Jewish law; otherwise, however, all agreed that she was entitled to succeed in her claim in accordance with the law in practice in Portugal even if this was not the law in Turkey where the hearing took place (Avkat Rokhel, nos. 80–81; Resp. Maharashdam, Ḥm no. 327; Resp. Maharibal 2:23; see also Civil Appeal 100/49, in Pesakim shel Beit ha-Mishpat ha-Elyon, 6 (1951/52), 140ff.). In Israel the rabbinical court has accepted the opinion of the scholars who held that the law of the place of celebration of the marriage must be applied – even if on the basis of halakhah the marriage is invalid. In the case of a Jewish couple who had emigrated from Russia, having been married in Russia in a *civil marriage ceremony only, in 1942, and were seeking a divorce before the above court, it decided that their common property should be divided in accordance with the law in practice in Russia in 1942 regarding the division of property between separated spouses (pdr 5:124ff.; see M. Elon, Hakikah Datit (1968), 169–72).
Some of the scholars dealing with the Mendes matter (see above) determined, as a matter of principle, that all contracts and acquisitions of property (kinyanim; see *Contract and *Acquisition), made among the Marranos themselves, in accordance with the general law of their land, were to have legal validity, even after the Marranos' open return to Judaism. One of the reasons advanced for this far-reaching determination was the fact of the Marranos' interest, for the sake of proper order in business matters, in ensuring that all their commercial and economic transactions have full legal validity – "and this is as a fixed custom among them, overriding the halakhah" (Mabit, in Avkat Rokhel, no. 80; see also *Minhag). Of particular interest is a reason advanced by Samuel de Modena, paralleling one of the general principles in the field of the conflict of laws: "for if it were otherwise, none of the anusim who came from there [from Portugal and Spain to Turkey] would be able to live; if the transactions they had with each other there in accordance with local custom but not according to the law of the Torah, were now reopened; this is plainly inconceivable; as regards everything that was done there, we must say: what is done is done, from now on a new reckoning" (Resp. Maharashdam, Ḥm no. 327).
An illustration of the conflict of laws in the above field, arising in Spain in the 13th century in regard to a takkanah prohibiting the divorce of a wife against her will, is to be found in the responsa collection of Solomon b. Adret (vol. 4, no. 186). At that time this takkanah was not followed everywhere in Spain, and the question arose whether a wife could be divorced against her will in the event that the takkanah was in force at the place of celebration of their marriage but not at the place to which they later moved – where the divorce proceedings were taking place – Solomon b. Adret replied: "for anyone marrying at a place where a wife cannot be divorced except with her consent is so bound, and he marries her in the knowledge that he cannot divorce her except with her consent … and even if he takes her away from the place of their marriage … to another place, he may not divorce her except in accordance with the custom of the place of their marriage."
In this field, too, there evolved different local customs, and the rule, "all in accordance with the custom of the country," (bm 7:1) was applied with particular reliance on the principle that "custom overrides the halakhah" (tj, bm 7:1; see also *Minhag). This diversity naturally led to cases of conflicting laws. The Mishnah records that there were places where it was customary for laborers to go to work early in the morning and return late in the evening, while in other places they did not set out so early or return so late (bm 7:1). In the Jerusalem Talmud it is stated that it was not customary for the people of Tiberias to start early and finish late, but this was the case with the people of Beth-Maon; it was stipulated that residents of Tiberias hired as laborers in Beth-Maon must act in accordance with the custom in Beth-Maon and laborers from Beth-Maon hired in Tiberias must act in accordance with the custom in Tiberias – i.e., that the determining law is the law of the place of fulfillment of the obligation; nevertheless, if an employer from Tiberias should hire in Beth-Maon laborers to work in Tiberias, they must start early and finish late according to the custom in Beth-Maon because the fact that the employer does not hire laborers in Tiberias, but comes specially to Beth-Maon for this purpose, proves his intention to find laborers who will start early and finish late, and it is as if he expressly agreed to such effect (tj, bm 7:1).
Instances of differing and conflicting customs are mentioned also in fields of the civil law such as partnership (bb 1:1, 2), lease, and land tenancy in return for a share of the crop (arisut; bm 9:1), etc. (see *Lease and Hire). In these cases too it was laid down that the custom of the place where the obligation is established must be followed (Resp. Rashba, vol. 1, no. 662). Of interest is the conflict of laws principle laid down in a responsum of Simeon b. Ẓemaḥ Duran, 14th-century scholar of North Africa, in relation to a business partnership (Tashbeẓ 2:226). A dispute between one partner and the others concerning distribution of the partnership profits was brought before "a certain merchant who adjudicated between them," i.e., a lay judge adjudicating in accordance with the trade custom and not Jewish law. In an appeal before Duran against this decision, Duran held that the merchant's judgment did not conform with that required to be given in accordance with Jewish law; the contention of the partners who succeeded in the first instance, that the matter was originally brought before a merchant-judge in accordance with the local trade custom and that his decision was binding on the parties, was answered by Duran to this effect: the custom in question, although followed in the locality where the partners then found themselves, was not in existence at the place where the partnership was established, hence the local custom of the former place, i.e., the place of operation of the partnership, was not to be applied to their case, but the matter had to be dealt with in accordance with the custom at the place of establishment of the partnership.
A conflict of laws, in the wider sense of the term, may arise not only when there are in operation divergent legal methods at the various stages of an obligation, but also when there exists, at these various stages, a divergence of legal facts.
When a bond specifies a particular currency which is in circulation in two countries, but its value is greater in one country than in the other, the rule is that the amount stated is payable in accordance with the value of the currency in the country where the bond was drawn up and not its value in the country where the bond is presented for payment: "When a person seeks to recover payment of a bond from his neighbor, then, if it is recorded as having been written in Babylonia – he recovers in Babylonian currency; if in Ereẓ Israel, he recovers in the currency of Ereẓ Israel; if there is no qualification in the bond, then, if he seeks to recover in Babylonia – he recovers in Babylonian currency, and if he seeks to recover in Ereẓ Israel – he recovers in the currency of Ereẓ Israel" (Tosef., Ket. 13 (12):3 and bb 11:3; according to the version in Ket. 110b; Yad, Malveh 17:9; Sh. Ar., Ḥm 42:14). The posekim were divided based on the reasoning for the second part of the above rule; some of them expressed the opinion that the bond is recovered according to the currency value at the place where the bond is presented for payment, because it is presumed that the bond was drawn up at the place where it is presented for payment; but if the presumption is rebutted, by proof that the bond was drawn up elsewhere, it will be payable according to the currency value at the latter place (Yad and Sh. Ar., loc. cit.; Sefer ha-Terumot 54:1); other posekim explained the rule on the basis that in the circumstances in question, the parties intentionally omit any mention in the bond of the place where it is drawn up in order that the amount be payable according to the currency value at the place where the bond shall be presented for payment, and, according to this explanation, the currency value will always be as determined at the place of presentation of the bond for payment (Ran to Alfasi, end of Ketubbot; pupils of R. Jonah, in Shitah Mekubbezet, Ket. 110b; Nov. Ritba Ket. 110b; see also Kesef Mishneh Malveh 17:9; RemaḤm 42:14 and Siftei Kohen thereto, n. 34).
A similar problem was discussed in relation to payment of the amount specified in the ketubbah, in a case where the parties had married in Ereẓ Israel and were being divorced in Cappadocia (a country in Asia Minor which was famous for its coin mint – see S. Lieberman, Tosefta ki-Feshutta, 6 (1967), 389), and the same currency was in circulation in both countries, although at different values (Ket. 13:11; see also Tosef., Ket. 110b and bb 11:3). The scholars who differed from R. Simeon b. Gamaliel were of the opinion that the ketubbah and a bond of indebtedness were subject to different rules (Ket. 13:11). In regard to the substance of the difference, the opinions stated in the Jerusalem Talmud differ from those in the Babylonian Talmud. According to the former, the value of the currency was higher in Ereẓ Israel than in Cappadocia, and in respect of the ketubbah – a right of the wife flowing from the Torah, according to these scholars – the scholars were always careful to see that it was received by the wife according to the higher value, i.e., according to the value in Ereẓ Israel, even if the marriage took place in Cappadocia (tj, Ket. 13:11). In the Babylonian Talmud it is held that the currency value was lower in Ereẓ Israel than in Cappadocia, and as far as concerned the ketubbah – in the opinion of these scholars a right given the wife by rabbinic enactment and not law (see *Oral Law and Written Law (*Torah)) – it was more leniently regarded by the scholars than any other bond of indebtedness, and therefore it was held to be payable in accordance with the currency in Ereẓ Israel, i.e., according to the lower value, even if the marriage took place in Cappadocia (Ket. 110b). R. Simeon's opinion, according to both Talmuds, was that the ketubbah was subject to the same law as any other bond of indebtedness (according to the Babylonian Talmud because in his view the ketubbah was an obligation of biblical law; according to the Jerusalem Talmud because it was an obligation of rabbinical law), and it was always necessary to pay according to the currency value at the place of establishment of the obligation, i.e., the place where the marriage took place.
It may be noted that the same problem was discussed in principle in relation to other halakhic matters. Thus it was established that a person transporting – other than in Jerusalem – second tithe fruits from a cheaper to a more expensive area, or vice versa, had to redeem the fruits according to their value at the place of redemption and not as valued at the place from which they were brought (Ma'as. Sh. 4:1; see also Ned. 8:4 in tb and tj; see also *Domicile). For the validity of documents drawn up in non-Jewish courts, see *Shetar.
According to a baraita of the talmudic law, if in a suit between a Jew and a gentile, before a Jewish court, there exists the possibility of favoring the Jew either according to the general law or according to the Jewish law, then this should be done by the court (bk 113a; cf. Sif. Deut. 16; Yad, Melakhim 10:12). This halakhah is quoted in the Talmud in the context of heavy and arbitrary tax quotas imposed on the Jews (see *Taxation); it is also to be understood as a reciprocal measure, i.e., as a reaction to the unequal treatment afforded Jews in the gentile courts (in like manner to the halakhah in bk 4:3, see bk 38a – "because they did not take upon themselves the seven *Noachide laws"; see also Albeck and other commentators to the Mishnah and Gemara, loc. cit.). Thus in the 13th century it was laid down that "at any rate this [the foregoing] was not said in regard to those who follow a defined religious faith; if they come before us to be adjudged, their way shall not be barred in the slightest manner, but the law shall cleave the mountain, whether in his favor or against him" (i.e., whether in favor of the Jewish or gentile party – Beit ha-Behirahbk 38a; and this is also the interpretation given in other similar cases: Beit ha-Behirahbk 37b–38a and Av. Zar., 3a, 6b, 22a, 26a). This talmudic halakhah is still quoted in Maimonides' Mishneh Torah but in the later Codes, such as the Arba'ah Turim and the Shulhan Arukh it is not mentioned at all. The very discussion of this halakhah ceased to be of any practical significance since the non-Jewish party was not subject to the jurisdiction of the Jewish courts and acted in accordance with the general law (in many places the central government would appoint a special judge to deal with suits between Jews and non-Jews; see, e.g., Baer, Spain, 1 (1961), 51, 83, 87, 115, 131, 310; 2 (1966), 66; Beit Yisrael be-Polin, ed. by I. Heilprin, 1 (1948), 58f.).
From various talmudic halakhot it may be deduced that in a legal transaction involving both a Jewish and a non-Jewish party, the latter acted in accordance with the foreign law – a fact that was calculated, in certain cases, to influence the manner in which the issue was decided. Thus the following problem is discussed in the Talmud: the debtor dies leaving *orphans; thereupon the surety pays the creditor before notifying the orphans of the fact of payment and then seeks to recoup this payment from the orphans (see *Suretyship). The surety's haste in paying the debt without prior approach to the orphans arouses suspicion of a conspiracy, i.e., the possibility that the debtor had paid the debt before he died in order to avoid a claim against the orphans, and that the surety and creditor conspired to recover the debt a second time, from the orphans, so as to share the money (bb 174b). In the course of the talmudic discussion the opinion is expressed that the above-mentioned suspicion only arises in the event that the creditor is a Jew, for the reason that in Jewish law the creditor must first have recourse to the debtor – hence the debtor's fear that the creditor might have recourse to the orphans and his decision to forestall this possibility by paying the debt; however, in the case of a non-Jewish creditor, there would be no reason to suspect that the debtor paid the debt during his lifetime, since according to Persian law, to which the creditor was subject, the latter might have direct recourse to the surety, and the debtor would know that the creditor was going to do so and not have recourse to the orphans (bb 174b; the contrary opinion expressed here also takes cognizance of the fact that in Persian law the creditor may claim directly from the surety). Hence it was decided, in Spain in the 14th century, that when the law applicable to the non-Jewish creditor is identical to Jewish law, the case of the latter will be no different from that of a Jewish creditor (Maggid Mishneh Malveh 26:6). Also recorded is the case of a non-Jew who hypothecated his courtyard to a Jew, which he then sold to a Jew (see bm 73b; Yad, Malveh 7:6; Sh. Ar., yd 172:5).
From application of the doctrine of dina de-malkhuta dina, rules are often derived (see above) which may serve as guiding principles in the field of the conflict of laws, of which the following two examples may be noted.
Elijah b. Ḥayyim, head of the Constantinople rabbis at the end of the 16th century, determined that even in the case where Jewish law is subject, by virtue of the doctrine of dina de-malkhuta dina, to the foreign law, it is subject only to the material and not the procedural part of such law; hence the laws of evidence are always to be applied in accordance with Jewish law – i.e., the lex fori, which is the intrinsic law absorbing the foreign law. The case under discussion (Resp. Ranahno. 58) concerned the question of *imprisonment for debt. Elijah b. Ḥayyim held that even on the assumption that the doctrine of dina de malkhuta dina was applicable (according to the accepted view, this could not have been the case since the question of personal freedom is a matter of the ritual law (issur ve-hetter) to which the doctrine is not applicable), only the material provision of the law of the land was to be applied, i.e., the provision that a defaulting debtor was to be imprisoned if he had the means to pay, but not otherwise; however, the mode of inquiry into, and proof of, the debtor's financial position had to accord with Jewish law. Hence Elijah b. Ḥayyim concluded that in a case where it was not satisfactorily proved, in accordance with the foreign law, that the debtor lacked the means of paying this debt, but according to the rules of evidence in Jewish law, there was adequate proof of the debtor's lack of means to make payment, then the debtor was to be treated as such and could not be imprisoned (see M. Elon, Ḥerut ha-Perat (1964), 164 n. 200).
The validity of a *will executed by a Marrano Jew in Majorca was the subject of a dispute between two 14th-century halakhic scholars, Isaac b. Sheshet Perfet and Simeon b. Ẓemaḥ Duran (Resp. Ribash nos. 46–52; Tashbeẓ 1:58–61). The testator bequeathed his estate to his daughters on condition that the estate pass to his wife on their death. When the daughters died, the civil court decided that the estate was to pass to the testator's widow in accordance with the will, and called on all persons holding estate assets to restore such to the widow. The heirs of the daughters challenged the will on the ground that in Jewish law, in such circumstances, the estate belonged to the natural heirs of the deceased beneficiary ("Inheritance has no interruption" – bb 129b; Sh. Ar., Ḥm 248:1) and called for restoration of the estate assets to themselves. Bar Sheshet held it to be correct that the heirs of the daughters would succeed to the estate if the will "had been executed amongst Jews at a place where they judged according to Jewish law"; however, he added, "the testator was living in Majorca presumably as a gentile and the wife claiming under the will, as well as those claiming to inherit by virtue of kinship are also presumed to be living there as gentiles, and even as Jews they have been required to be adjudged in accordance with the law of the gentiles; for this has always been their practice of their own will; how then shall one of the parties go to a far place to be adjudged in accordance with Jewish law? Let them come before their own judge in Majorca, namely the bailus (gizbar), and whoever shall succeed and be held by the bailus to be entitled to the testator's property shall be the heir." Thus Bar Sheshet regarded the lex domicilii as the law which was intended by the testator to apply to the will and all concerned therewith, so that none of the possible heirs, or beneficiaries under the will, were entitled to demand that the validity of the will be judged according to any other law.
Duran took a different approach, determining at the outset that Jewish law continued to apply to all the parties, even though they had been Marranos (for the opinions of Mabit and Maharashdam in the matter of Gracia Mendes see above). He added, however, that even if the doctrine of dina de-malkhuta dina was applicable to the case, the fact remained that "the rulers of the land are concerned only with the property in such land"; and in regard to property outside of Majorca (i.e., North Africa in this case) "on the contrary, we must say that the same law is not to be applied on account of this very doctrine in order that the government of the land in which the property in issue is situated shall not be particular – when there are in such land those who have a claim of right – about the fact that the latter lose their right because of the opposing law of another land." In his opinion therefore the lex situs, the law of the place of situation of the property, was the proper law applicable to assets in a foreign country, and not the law of the place of domicile of the testator and beneficiaries, and since at the place of situation of the property there were those who claimed it in accordance with Jewish law, this law, being the lex situs, as well as the lex fori, was to be applied (see also *Public Authority; as for the interpretation of privilege granted by the central government to the Jewish community, see Resp. Ribash no. 228).
Further to our comments above (under "Concerning the Laws of Marriage") there is a noteworthy decision of the Israel Supreme Court, the Miller case, given in accordance with Jewish Law on the subject of conflict of laws (Miller v. Miller – ca 100/49, 5(3) pd 1305).
The Miller case involved an appeal against a District Court decision requiring the estate of the deceased husband to pay a fixed monthly amount to the respondent throughout the period of her widowhood. The deceased was British and his wife had also acquired British citizenship on the basis of her marriage to him. The deceased was a Jew, who had closed his business in England and immigrated to the Land of Israel (pre-State), where he remained, without leaving, for 13 years. These and other facts led the District Court to the conclusion that the Land of Israel was his permanent place of residence and that, accordingly, given that his personal law was Jewish law, the applicable law was therefore the law applying to Jews in the Land of Israel, namely, Jewish Law, which requires the estate to pay maintenance to the wife even if the husband provided otherwise in his will. In this case, the deceased was wealthy, and the wife was hence awarded a sizable monthly payment.
Counsel for the estate argued, inter alia, that even under the assumption that the decedent's place of residence was the Land of Israel, in view of the fact that the deceased was a British subject, the domestic court must put itself in the place of the British court and determine what the latter would have ruled in such a case: i.e., would British law have transferred jurisdiction in this matter to the place of residence. Because English Law does not recognize a cause of action in this case, the English court would not have transferred the matter for the adjudication of an Israeli court.
Justice Y. Olshan rejected this argument, citing an English decision in the matter of De Nicols v. Curlier, in which the facts were similar to those of the case under discussion. In that case, two French citizens married in France and moved to England, where the husband died; the House of Lords held that the French law regarding joint ownership of property was applicable, despite the fact that the English law did not recognize such rights for the widow. Regarding this issue, Supreme Court Justice Prof. S. Assaf cited the above-mentioned case of Gracia Mendes, which is astonishingly similar to those of the De Nicols case, as follows:
By the way, it should be noted that a case very similar to the De Nicols case … is found in our Responsa literature from the middle sixteenth century, namely, the famous case involving Hannah Gracia Mendes and her younger brother-in-law. The case was brought before the halakhic scholars of the time in Turkey and in Israel, and the most important responsa are those of Rabbi Samuel of Medina (Maharashdam), the leading rabbi of Saloniki … and that of Rabbi Moses Mitrani, the Rabbi of Safed (Hamabit).
Justice Assaf also presented in detail the contents of the abovementioned responsa, ending with the above-mentioned responsum of the Rashba, to the effect that the wedding should be performed in accordance with the law of the place in which it is performed
M. Elon, Ha-Mishpat ha-Ivri (1988), 1:10, 58ff., 70f., 189f., 556f., 600, 711, 760; 2:1088, 1238f.; 3:1485ff.; idem., Jewish Law (1994), 1:9f., 64f., 78f., 212f.; 2:677, 743, 878; 3:1311, 1482f, 1766f.; idem., Ma'amad ha-Ishah (2005), 290f.; M. Elon and B. Lifshitz, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Sefarad u-Ẓefon Afrikah, 1 (1986), 48; B. Lifshitz and E. Shochetman, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Ashkenaz, Ẓarefat ve-Italyah (1997), 33.
[Menachem Elon (2nd ed.)]