Conflict of Characterizations
It should be noted that characterization,in general,is a normal and necessary process of human thought.We identify and arrange facts,knowledge and experience into groups and classes in order to understand them better,a process which operates in law no less and no more than in other fields of knowledge.
Though the process of characterization or classification exists in municipal law,it becomes much more prominent in the conflict of laws.This is because within a municipal system it normally represents no more than a logical or traditional ordering of the concepts,principles,and rules of that system into divisions and subdivisions of the law.To a judge or a lawyer it has always been a common process,and in simple cases an automatic one,to place any situation of fact on which he has to adjudicate or advise into its appropriate branch of law.If,for instance,a death occurred,the surrounding circumstances may indicate a classification of the legal consequences as a matter of criminal law (murder,manslaughter) or of civil law and within civil law to an appropriate sub-branch,such as tort,industrial injury or succession.However,if we pass into the field of conflict of laws,the problem of classification becomes much more complex,inasmuch as it assumes the character of a conflict—a conflict between two (or more) legal systems involved in a case,so to which shall be selected to define or to classify the issue itself or any rule or right arising thereunder.This is called “conflict of characterizations.”8
The conflict of characterizations arises from three main factors which may be summarized as follows:
(1) Different legal systems attach to the same legal term different meanings,that is,an identity of name covers a difference of nature or content of a legal idea.The conception of immovables is a typical example.In some countries,wild animals are classified as immovables,while in others,as movables.In France,bee house is classified as movables,while in the Netherlands,immovables.9 It does not follow that one definition is right,and others are wrong: it merely involves the need to find a principle for the ascertainment of which definition shall apply either generally or in any particular case.(https://www.daowen.com)
(2) Different legal systems assign to different branches of law problems which,in general terms,are of a common nature.For instance,in English law,restitution is contractual remedy; while in many civil law countries,it is classified as unjust enrichment.10
(3) Different legal systems may hold diametrically opposed view on the correct classification on the same fact.For instance,where the question whether a will is revoked by marriage may be regarded by the forum as a question of matrimonial law,but by the foreign law system as a testamentary matter.
(4) Different legal systems may contain ideas and conceptions completely unknown to one another.For instance,the English idea of the illegitimate child of the medieval Chancellor,has no exact counterpart in civil law countries; conversely,no concept of English law corresponds to the German Aufhebung,a dissolution of marriage for causes existing before the marriage took place.11
Obviously,because of the conflict of characterizations,the problem of classification in the context of private international law becomes much more important and complex.Therefore,the application of law in the procession of characterization becomes a key issue.