Movable

Property
 Classification of Movables
•  Tangible Movables
•  Intangible movables
 Tangible Movables
General Rule
Ø Immovables: - Lex situs
Ø Intestate Succession: - Last domicile or
nationality of deceased
Ø Question of property transfer inter vivos: ???
Transfer of Tangible Movables (Choses
in Possession)
Various Theories:
Lex Domicilii Theory:
– Mobilia sequuntur personam (movables follow
the [law of the] person.
•  Oldest theory; movables have not fixed situs,
can be shifted in any times by its owner, was
the arguments of using this theory.
•  Criticism: The law of the domicile is difficult to
apply if the parties have different domiciles:
 Theories ---
Lex Loci Actus Theory:
Ø  Law of the place where the transaction took
place governs title in the property not upon the
law of the domicile of the owner – Alcock v.
Smith (1892).
Ø  Criticism: Mere fact that a transaction is
completed in a particular place is no adequate
reason for admitting the control of the local
law.
 Theories ----
The Lex Situs Theory:
•  The transfer of movables is governed by the
law of the country where the movable
property is situated.
•  Criticism: It doesn't work and goods are in
transit.
 Theories ---
The Proper law of the Transfer Theory:
Proper law is the law which seems to have the closest
and most real connection to the facts of the case, and
so has the best claim to be applied. In case of transfer
of movables, proper law is the law of the country with
which the transfer has the most real connection.
•  No exclusive theory applies but choices between
citus and proper law theory could be most reliable
options – Cheshire

 Problem in Transfer of Movables
1.  Where the citus changes –
•  Test cases: Cammell v. Sewell (1858);
•  Winkworth v. Christie, Manson & Woods Ltd.
(1980):

Law of situs at the time of transaction applied

 Problem ---
2. Goods in transit: Which law applies?
-  Law of the situs is not practical as goods have no
resting-place at the time of transfer;
-  Law of the domicile of a owner can give problem
if their domiciles are different;
-  Law of the destination may face problem if the
destination altered during the course of
transaction;
-  The law of the place of dispatch is not suitable
when transit is nearing completion;
 Preblem ---
Goods in transit --- answer by Cheshire
'Proper law is, no doubt, suitable to govern
questions depending upon the effect of a
particular transaction, but scarcely apposite to
every question.’ The truth again is that no
single law can be made the exclusive arbiter of
disputes arising out of a transfer of goods in
transit.
 Goods in Transit Under Nepal Law
Section 708 of NCC
Goods to be governed by law of destination: Any
goods in transit in the course of carriage shall be
governed by the law of their destination.

 Next Reading
Kuwait Airways Corp. v Iraqi Airways Co. (Nos 4
and 5)
[2002] UKHL 19, [2002] 2 AC 883