PIL Flashcards
(48 cards)
British South Africa Co. v Companhia de Mocambique
MOD 17
laid down the MOZAMBIQUE rule that english court has no juris over the right to property and possession of foreign immovables even if the parties are resident or domiciles in england.
Hesperides Hotels v Muftizade
MOD 17
House of Lords had held that the rule excluding jurisdiction of the English Court to entertain action for determining the title to or the right to possession of foreign land is not limited to cases where there was a dispute as to title.
Penn v Baltimore
mod 17
if there is a personal obligation then english court may step in but like they will give a decree that will affect the person in english land only (foreign land they cannot do anything) like defendant should be subject to some personal obligation arising from his own act
The circumstances that have been considered sufficient to create this personal equity mainly relate to
A. Contracts relating to foreign land
B. Fraud and other unconscionable conduct
C. Fiduciary relationship
Cranstown v Johnson
17
plaintiff owned a plantation and def was owed some money from him but then plaintiff could not transfer money cause he was out of station
using island ke laws def proceeded against the plaintiff by leaving summons at his prop and without notice got a decree from court to get the plantation sold to himself at very low price
plaintiff sued in england and court said give the plantation back because even though def used legal ways it was done not to get money but to acquire prop in a small price
Deschamps v Miller
17
A and B married in france and said whatever prop we buy after marriage is OURS
later A went to madras and married Q and then set up a trust for Q and her children managed by trustees
B’s son sued the trustees
english court said not our problem because there is no principle of equity as trust managers responsibility is Q and not the sun who is suing
The tolten case
17
Admiralty jurisdiction in trespass
if a ship negligently damages property in another country that’s connected to the sea, and this damage creates a maritime lien on the ship under international sea law, then an English court can hear a case to enforce that lien against the ship, even though it involves damage to foreign land. The special rules of Admiralty law override the usual rule about not dealing with foreign land trespass.
Nelson v Bridgeport
17
The incidents of real estate, the right of alienating or limiting it and the course of succession to it depend
entirely on the law of the country where the estate is situated.
Thus lex situs governs
(1) capacity to take immovables
(2) capacity to transfer immovables whether by sale, mortgage or gift
(3) formal validity of transfer of immovables
(4) essential validity of transfer of immovables
(5) succession bot testate and intestate.
Bank of Africa v Cohen
17
married woman signed a deed to pay off husband debt by putting a south africa home on mortgage.
but when it comes to actually signing the papers she said acc to lex situs she is not allowed
english court took her side and said deed and immovable house props are governed by lex situs so the contract between bank and woman is void and she was in no capacity to sign it
this case got a lot of criticism from morris and cheshire. they said, this was unfair because it ignored the fact that the contract was made under English law and the woman knew what she was doing. They felt the court should have either looked at the underlying purpose of the South African law or treated it as a matter of fulfilling the formalities of creating a mortgage on foreign land, rather than invalidating the entire agreement made under English law.
De Nicols v Curlier
18
french man woman married in france without a marriage contract and then domiciled in england. man got a naturalization certificate of england. after dying with a will, what law will apply
French implied matrimonial contract upheld over English immovable
property.
————> A prior express or implied contract may override lex situs in
determining validity of dispositions.
Studd v Cook
18
english man wrote a will saying that after he dies property of england and scotland will be given to X and after X to X’s sons
if construed according to Scots law X had full ownership (fee simple) because the testator did not use the word “only” after “for life”.
Will used English terms; court used English law for both English and
Scottish property (focus: construction).
In Re Miller
18
Though the will followed Scottish form, English law governed English
land as it involved recognition of property rights (focus: legal validity,
not mere interpretation).
Sankaran Govindan v Lakshmi Bharati
18
case of the krishna doctor from travancore having a fight with brother. question of whether or not his domicile of choice (england) or real domicile (india) focus on whether or not he wanted to come back to india
The question whether a particular property is movable or immovable has to be decided under the law of the place where the property is situated. if by PIL prop is to be immovable then english law of succession
if movable the lex domicile
point is – ENGLAND
Satya v Teja Singh
20
Teja married in india later went to Utah to study where initially provided maintenance to his wife but then he wanted a divorce
dude went to las vegas and misrepresented that he had domicile there. ex parte divorce was passed
SC said its not a conclusive decree u/s 13 of CPC because HE WAS A LIAR
Shaw v Gould
15
a dude left some funds for elizabeth for life and then they will be trasferred to her kids after she died and also land for her first legitimate son
this 16 y/o girlie tried to run away and married this trickster BUXTON but just after ceremony parents were like ghar aa gadhi so they did not have sex at all
later, girlie wanted to marry SHAW in scotland so both of them decided to marry legally get BUXTON in Scot and pay him to pretend to live in scotland so they can get divorced and then shaw and elizabeth can get married. blah blah scotland granted divorce. and later in years shaw and girlie had kids
acc to scottish law divorce was legal so trust should be given to kids
but house of lords said, yea no because the divorce was done in collusion and scottish cannot grant divorce because BUXTON actually did not have a scottish domicile so, elizabeth marriage to shaw was illegal and kids were illegitimate and she was still married to BUXTON!!
In Re Bischoffsheim
15
Dude left money for grand daughter Nesta and her children
nesta married her dead husband’s brother who was from new york and gave birth there only after shifting in new york
can son get the trust? because in new york its ok to marry your dead husband brother but in england its not
court said unlike shaw v gould, when it comes to inheriting personal property, if a child is considered legitimate according to the law of their domicile of origin (where they were legally considered to belong at birth), then English courts should recognize that legitimacy.
new york born = got the trust.
In Re Grove
15
Sara Thomegay born in England of a woman domiciled in England. Her father’s
domicile of origin was Switzerland but he had acquired an English domicile of choice at the time of Sara’s birth in England.
Her parents subsequently married in England when both of them were domiciled in England.
Swiss law recognized legitimation by subsequent marriage and by
Swiss law, Sara would be legitimate.
Cotton LJ held Sara illegitimate as her father was not domiciled in a country which recognized this type of legitimation at the time of her birth.
Re Goodman’s Trust
15
man from england had 3 children w charlotte
went to holland and acquired dutch domicile
then had 4th child
then married
then had a 5th child
dutch recognizes putative marriage
so they said only 4 and 5 legitimate because they pass the double test
Re Luck’s settlement
15
David’s father was domiciled in England but left his wife and went to California with David’s mother.
DAVID born in california > but illegitimate u/ english law because his parents were not married > at birth both parents were domiciled in england
father later moved to california and divorced first wife and married someone else (not david’s mother) and signed a doc saying david is my legal son.
Under Californian law, David was considered his father’s legitimate son from the date of his birth.
English court ruled that David was not entitled to a share as a legitimate grandson.
he court applied what’s often referred to as a “twin test” for recognizing legitimation, even in cases of legitimation by recognition (not just by subsequent marriage). This test requires that:
- The law of the father’s domicile at the time of the child’s birth must allow for the type of legitimation claimed.
- The law of the father’s domicile at the time of the legitimation act must also allow for it.
avid’s legitimation wasn’t recognized in England because at the time of his birth, his father was domiciled in England, and English law at that time did not allow for legitimation by recognition alone (without subsequent marriage). Even though Californian law later made him legitimate, the English court looked back to the father’s domicile at the crucial moment of David’s birth.
Phillips v Eyre
11
jamaican governer committed assault and false imprisonment
later passed act of indemnity to justify the acts and said the acts were done to suppress a rebellion
judge ruled in favor because its ok acc to lex loci delicti.
Machado v Fontes
11
plaintiff sued defendent for libel that happened in brazil.
there. we do not have any civil action for damages but the libeller could be prosecuted criminally.
defendent said since libel is not a tort is brazil it cannot be one in england also
england did not agree, because cause acc to the 2 condition test, the act is not justifiable by the Brazilian law.
Now Machado v Fontes has been overruled by the majority of the House of Lords
in Boys v Chaplin. According to the majority of the House of Lords in Boys v
Chaplin, not justifiable according to the lex loci delicti means not actionable. So,
the position is that in order to sue upon a foreign tort in England, the act should
be actionable as a tort by English domestic law and it should create civil liability by
the lex loci delicti.
boys v chaplin
11
plaintiff and the defendant were servicemen stationed in Malta.
Boys was injured in Malta due to the negligent driving of Chaplin.
By Maltese law, Boys had the right to
recover the pecuniary loss due to the injury but, there is no right to recover compensation, for pain and suffering.
Under English law, the plaintiff had the right to recover compensation for pain and suffering in addition to pecuniary damages suffered and hence under English law his damages would be more
The House of Lords was unanimous in deciding that the plaintiff should recover the higher sum under English law.
Used a flexible interpretation of the rule in Phillips v Eyre. As interpreted by the House of Lords, lex fori plays a more substantive role than the lex loci delicti.
If the act, gives rise to a civil cause of action, according to the lex loci delicti, the extent of liability would be determined by English law in an English Court.
Coupland v Arabian Gulf Petroleum
11
dude was scottish working for an english oil company in Libya
got injured and sued the company in england
company said, libyan law would apply and that they had provided Mr. Coupland with some compensation.
They claimed that under Libyan law, he wasn’t entitled to claim anything more, and a separate lawsuit for damages wouldn’t be allowed.
They based this argument on a legal principle where it should be bad in the foreign country also
The main rule for foreign torts in English law as “double actionability.” This means:
The action must be considered a tort (a civil wrong) under English law.
There must also be civil liability between the parties under the law of the foreign country where the wrong happened (in this case, Libya).
Judge stated that usually in tort cases, the law of the country where the lawsuit is being heard (lex fori, which is English law here) is the law that should be applied. However, the Phillips v Eyre rule adds a condition that the act must also be actionable under the law where it happened (lex delicti, which is Libyan law here).
If Mr. Coupland had sued the oil company in Libya based on the same facts, his claim would have been actionable under Libyan law (even though he might have already received some compensation).
Because the judge found that the second part of the Phillips v Eyre rule (actionability under Libyan law) was satisfied, he concluded that Mr. Coupland’s tort claim was governed by English law, not Libyan
Vita Food Products v Unus Shipping Co.
9
developed the proper law of contract
canadian company made a contract with american company. it had a clause that captain would not be responsible for any negligience which went against the international rules. the contract also specifically said that all disputes to be solved acc to english law
judge said they explicitly wanted english law so its fine but if there is no explicit clause then you need to see the circumstance and decide accordingly
Mount Albert Borough Council v Australian Temperance and Generall Mutual Life Assurance Society
9
english law takes a flexible approach
law where contract was signed or has to be performed cannot be the only place whose law need to be followed
english court check the intention of the parties
they want them to explicitly state where the juris is
but if not, then, check the intention or see what country will be the most proper for the juris
