Rem
Content
Editorial Committee of the Cambridge Law Journal
Equity, Rights in Rem and the Brussels Convention Author(s): Pippa Rogerson Reviewed work(s): Source: The Cambridge Law Journal, Vol. 53, No. 3 (Nov., 1994), pp. 462-464 Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge Law Journal Stable URL: http://www.jstor.org/stable/4507985 . Accessed: 10/11/2011 02:25
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected].
Cambridge University Press and Editorial Committee of the Cambridge Law Journal are collaborating with JSTOR to digitize, preserve and extend access to The Cambridge Law Journal.
http://www.jstor.org
462
The Cambridge
Law Journal
[1994]
local authority to control any attempted exercise of that responsibility be but there will undoubtedly by the father (under section 33(3)(b)) those who will feel that a murderer, or other serious abuser, should not have it at all. Andrew Bainham
equity,
rights
in rem and the brussels
convention
The Webbs are clearly a family not lacking for money, but the homely virtues of respect and gratitude may be in short supply. Mr. Webb had a flat in Antibes in France for a large sum of money; he purchased then furnished clearance name. it and control his son's it. However, maintained to obtain exchange from the Bank of England he had bought the flat in One imagines that they quarrelled, as the father now
wished to have the property registered in his name. Both father and son were resident in England so the father took his grievance to the that he was entitled to the flat English court; asking for a declaration as beneficiary under a resulting trust and an order that his son should do all in his power to transfer the title to the flat to him. The preliminary issue in Webb v. Webb [1994] 3 W.L.R. 801 was the English court's jurisdiction to adjudicate this dispute which really the ownership concerned of a flat in France. Article 16(1) of the Brussels Convention confers jurisdiction on the court of the situs where the proceedings "have as their object rights in rem in immovable in a Contracting State. This jurisdiction is so exclusive that to oust it by contract nor by (Article possible 17(4)), submission to another court (Articles 18 and 19) and it excludes the of the courts of the defendant's domicile. At first sight, it jurisdiction would seem obvious that the fundamental question was: who owned the flat? That would be an issue in rem and so fall within Article 16(1). the English court would have had to decline jurisdiction in Therefore, favour of the French court. However, these proceedings had been property" it is not was carefully framed as a matter of trust. The issue for determination whether the father could rebut the presumption of advancement so that the son held as trustee for him under a resulting trust. The father would then be entitled under the rule in Saunders v. Vautier to require the son to transfer the legal title to him. The son argued that the action was not in rem but in personam. It was not a case of the father asserting a right good against all the world but seeking to acquire a right only the English courts could determine the against his son. Therefore, matter. With unusual harmony Paul Baker, Q.C., the Court of Appeal and the European Court all agreed with this analysis. The ECJ followed Reichert v. Dresdner Bank [1990] E.CR. I, 27 to hold that
C.L.J. these proceedings, based on a right in No court made tion of the issue.
Case and Comment
463
immovable although involving property, were not rem and Article 16(1) did not apply. it explicit, but the point concerned the characterisaThis normally arises in deciding on the relevant
choice of law rule. However, Article 16(1) requires a court to decide whether the action involving immovable property is in rem to determine the court's jurisdiction. To a civil lawyer the distinction between in rem and in personam rights is clear. In contrast, English domestic law is not confident about the exact nature of an interest under a trust. in the traditional manner of an equitable interest being good Analysed and purchasers with notice of the only against the trustee, volunteers equitable right, one can agree that the interest is asserted in personam. In the alternative that equitable interests are good against recitation all the world except equity's darling, the right appears to be more one in rem. The distinction is rarely crucial as in most domestic cases even a right in rem will be asserted in personam. Also, the English courts have long characterised actions about foreign land as concerning trusts the equivalent law rule to Article 16(1) so as to circumvent common Penn v. Lord Baltimore (1750) 1 Ves. Sen. 444). The (for example, maxim that equity acts in personam is liberally made use of in these cases. Is Webb v. Webb therefore cbrrect? The definition ofa common concept of in rem rights for jurisdiction is welcome. A uniform concept of in rem actions within the Convention must be adopted for all of irreconcilable possibility States so as to reduce the If the pleadings are drafted judgments. is allocated with the claim expressed as being in personam, jurisdiction under the usual rules and Article 16(1) is inapplicable. Most matters Contracting
concerning English land, apart from actions to rectify the register, can therefore be decided in the French courts as they will be actions in it is important to note that it was only the However, personam. of jurisdiction matter of the allocation within Contracting preliminary States that was in issue. A firm distinction now must be drawn between for questions characterisation of jurisdiction under the Convention and that adopted for choice of law. Normally, characterisation of the issue for one purpose will suffice for the other. However, the danger is is made, the English court may come to a that, unless the distinction decision on the substantive property that is unacceptable enforce there. The substantive issue concerning French immovable to the French courts and impossible to issue in Webb v. Webb was decided at it as a matter of trust and this was not
first instance by characterising appealed. If the son remains obdurate the father will ultimately have to ask the French courts for enforcement. Would a French court enforce the English judgment by effecting a transfer of the title to the father? After the decision of the ECJ the French courts could not rely
464
TheCambridge Journal Law
[1994]
on Article to refuse enforce English 28 to the judgment. Nevertheless, the characterisation determination thesubstantive as one and of issue of trust(littleknownin France) rather thanas property cause may somedifficulties. French The courtmightbe tempted usetheordre to publicprovision (Article 27(1))to refuse recognise jlldgment. to the The actionwas between fatherand son alone,so presenting the courtwithan easydecision. father notask for a vesting The did order norforrectification theregister; of neither would have beenappropriate sincethe flatwasin France. Hadthe flatbeenin England, doubt no these remedieswould have been requested and this would have indicated moreclearly proprietary the nature thedispute. make of To the caseharder: whatif theson hadhada wifewhowasclaiming the flat as matrimonial property, if he had becomebankrupt? or Such questions clearly are proprietary substance mustbe referred in and to thelex sitas fordetermination. if theEnglish Even courthascharacterised the issuefor the purposes jurisdiction one of trust,at the of as choiceof law stageit wouldhaveto re-characterise issueas one the concerning property.
PIPPA ROGERSON DEEDS COVENANT OF EQUITABLE REMEDY RECTIFICATION OF IF two parties execute document achieve particular a to a resultand
theresult notachieved cantheparties about Onesolution is what do it? is to go to courtandaskforrectification thefirst of document; another is to execute newdocument. a RacalGroup Services v. Ashmore Ltd. [1994] S.T.C. illustrates thefirstsolution notworkunless 416 that does therehas beena clearfailureof the document recordthe terms to agreed; pointis long established. case also showsthat the this The secondsolutionmay inhibitthe first,a point whichis not always appreciated whichVinelottJ. thoughtmightnot be sound.Of and coursethis raisesthe question why anyonewouldstill wishto seek rectification the firstdocument of aftercompletion the secondbut of oftenrights mayturnon theprecise fromwhich date theyarecreated andthereis, as in thiscase,always riskof taximplications. the The case concerned attemptby Racal (R) to make a taxan deductible in favour charity; formchosen whatthe tax gift of the was legislationcalls "a covenanted paymentto charity".Thanksto the Incomeand Corporation 1988s. 660 and a raft of other Act provisions, might, making R on sucha payment, deduct retain and a sum equalto the basicrateof incometax; the charitycould then reclaim tax fromthe Inland the Revenue. R's rightto deductto For arisethere to be,amongst had other things, series annual a of payments
Equity, Rights in Rem and the Brussels Convention Author(s): Pippa Rogerson Reviewed work(s): Source: The Cambridge Law Journal, Vol. 53, No. 3 (Nov., 1994), pp. 462-464 Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge Law Journal Stable URL: http://www.jstor.org/stable/4507985 . Accessed: 10/11/2011 02:25
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected].
Cambridge University Press and Editorial Committee of the Cambridge Law Journal are collaborating with JSTOR to digitize, preserve and extend access to The Cambridge Law Journal.
http://www.jstor.org
462
The Cambridge
Law Journal
[1994]
local authority to control any attempted exercise of that responsibility be but there will undoubtedly by the father (under section 33(3)(b)) those who will feel that a murderer, or other serious abuser, should not have it at all. Andrew Bainham
equity,
rights
in rem and the brussels
convention
The Webbs are clearly a family not lacking for money, but the homely virtues of respect and gratitude may be in short supply. Mr. Webb had a flat in Antibes in France for a large sum of money; he purchased then furnished clearance name. it and control his son's it. However, maintained to obtain exchange from the Bank of England he had bought the flat in One imagines that they quarrelled, as the father now
wished to have the property registered in his name. Both father and son were resident in England so the father took his grievance to the that he was entitled to the flat English court; asking for a declaration as beneficiary under a resulting trust and an order that his son should do all in his power to transfer the title to the flat to him. The preliminary issue in Webb v. Webb [1994] 3 W.L.R. 801 was the English court's jurisdiction to adjudicate this dispute which really the ownership concerned of a flat in France. Article 16(1) of the Brussels Convention confers jurisdiction on the court of the situs where the proceedings "have as their object rights in rem in immovable in a Contracting State. This jurisdiction is so exclusive that to oust it by contract nor by (Article possible 17(4)), submission to another court (Articles 18 and 19) and it excludes the of the courts of the defendant's domicile. At first sight, it jurisdiction would seem obvious that the fundamental question was: who owned the flat? That would be an issue in rem and so fall within Article 16(1). the English court would have had to decline jurisdiction in Therefore, favour of the French court. However, these proceedings had been property" it is not was carefully framed as a matter of trust. The issue for determination whether the father could rebut the presumption of advancement so that the son held as trustee for him under a resulting trust. The father would then be entitled under the rule in Saunders v. Vautier to require the son to transfer the legal title to him. The son argued that the action was not in rem but in personam. It was not a case of the father asserting a right good against all the world but seeking to acquire a right only the English courts could determine the against his son. Therefore, matter. With unusual harmony Paul Baker, Q.C., the Court of Appeal and the European Court all agreed with this analysis. The ECJ followed Reichert v. Dresdner Bank [1990] E.CR. I, 27 to hold that
C.L.J. these proceedings, based on a right in No court made tion of the issue.
Case and Comment
463
immovable although involving property, were not rem and Article 16(1) did not apply. it explicit, but the point concerned the characterisaThis normally arises in deciding on the relevant
choice of law rule. However, Article 16(1) requires a court to decide whether the action involving immovable property is in rem to determine the court's jurisdiction. To a civil lawyer the distinction between in rem and in personam rights is clear. In contrast, English domestic law is not confident about the exact nature of an interest under a trust. in the traditional manner of an equitable interest being good Analysed and purchasers with notice of the only against the trustee, volunteers equitable right, one can agree that the interest is asserted in personam. In the alternative that equitable interests are good against recitation all the world except equity's darling, the right appears to be more one in rem. The distinction is rarely crucial as in most domestic cases even a right in rem will be asserted in personam. Also, the English courts have long characterised actions about foreign land as concerning trusts the equivalent law rule to Article 16(1) so as to circumvent common Penn v. Lord Baltimore (1750) 1 Ves. Sen. 444). The (for example, maxim that equity acts in personam is liberally made use of in these cases. Is Webb v. Webb therefore cbrrect? The definition ofa common concept of in rem rights for jurisdiction is welcome. A uniform concept of in rem actions within the Convention must be adopted for all of irreconcilable possibility States so as to reduce the If the pleadings are drafted judgments. is allocated with the claim expressed as being in personam, jurisdiction under the usual rules and Article 16(1) is inapplicable. Most matters Contracting
concerning English land, apart from actions to rectify the register, can therefore be decided in the French courts as they will be actions in it is important to note that it was only the However, personam. of jurisdiction matter of the allocation within Contracting preliminary States that was in issue. A firm distinction now must be drawn between for questions characterisation of jurisdiction under the Convention and that adopted for choice of law. Normally, characterisation of the issue for one purpose will suffice for the other. However, the danger is is made, the English court may come to a that, unless the distinction decision on the substantive property that is unacceptable enforce there. The substantive issue concerning French immovable to the French courts and impossible to issue in Webb v. Webb was decided at it as a matter of trust and this was not
first instance by characterising appealed. If the son remains obdurate the father will ultimately have to ask the French courts for enforcement. Would a French court enforce the English judgment by effecting a transfer of the title to the father? After the decision of the ECJ the French courts could not rely
464
TheCambridge Journal Law
[1994]
on Article to refuse enforce English 28 to the judgment. Nevertheless, the characterisation determination thesubstantive as one and of issue of trust(littleknownin France) rather thanas property cause may somedifficulties. French The courtmightbe tempted usetheordre to publicprovision (Article 27(1))to refuse recognise jlldgment. to the The actionwas between fatherand son alone,so presenting the courtwithan easydecision. father notask for a vesting The did order norforrectification theregister; of neither would have beenappropriate sincethe flatwasin France. Hadthe flatbeenin England, doubt no these remedieswould have been requested and this would have indicated moreclearly proprietary the nature thedispute. make of To the caseharder: whatif theson hadhada wifewhowasclaiming the flat as matrimonial property, if he had becomebankrupt? or Such questions clearly are proprietary substance mustbe referred in and to thelex sitas fordetermination. if theEnglish Even courthascharacterised the issuefor the purposes jurisdiction one of trust,at the of as choiceof law stageit wouldhaveto re-characterise issueas one the concerning property.
PIPPA ROGERSON DEEDS COVENANT OF EQUITABLE REMEDY RECTIFICATION OF IF two parties execute document achieve particular a to a resultand
theresult notachieved cantheparties about Onesolution is what do it? is to go to courtandaskforrectification thefirst of document; another is to execute newdocument. a RacalGroup Services v. Ashmore Ltd. [1994] S.T.C. illustrates thefirstsolution notworkunless 416 that does therehas beena clearfailureof the document recordthe terms to agreed; pointis long established. case also showsthat the this The secondsolutionmay inhibitthe first,a point whichis not always appreciated whichVinelottJ. thoughtmightnot be sound.Of and coursethis raisesthe question why anyonewouldstill wishto seek rectification the firstdocument of aftercompletion the secondbut of oftenrights mayturnon theprecise fromwhich date theyarecreated andthereis, as in thiscase,always riskof taximplications. the The case concerned attemptby Racal (R) to make a taxan deductible in favour charity; formchosen whatthe tax gift of the was legislationcalls "a covenanted paymentto charity".Thanksto the Incomeand Corporation 1988s. 660 and a raft of other Act provisions, might, making R on sucha payment, deduct retain and a sum equalto the basicrateof incometax; the charitycould then reclaim tax fromthe Inland the Revenue. R's rightto deductto For arisethere to be,amongst had other things, series annual a of payments
