The Law Applicable to Movables

Much more difficult is the question what law governs ownership (or other rights in rem) of movable objects.Historically,the Italian statutists of the Middle Ages and their followers in most part of Europe have developed the rule that such rights are subject to the law of the domicile of the owner or the possessor: mobilia personam sequuntur (movables follow the person) or mobilia ossibus inhaerent (movables inhere in the bones).4 This rule was prevalent for a few centuries,and was adopted by the laws of various states during the 18th century and the 19th century,such as the Prussian General Code of 1794,the Austrian Civil Code of 1811,the Baltic Code of 1864,the Italian Civil Code of 1865 and the Spanish Civil Code of 1888.5 The rationale for this rule is apparent,in a period when people did not know mercantilism,articles of personal property were few and cheap,and were usually situated in the owner’s domicile.

It is not such case in modern commerce.Today the modern business system has penetrated almost everywhere with its vast mechanized productive capacity and its efficient means of transportation and communication.Movable property has thus been brought from a secondary to a primary place as an object of wealth.The systems of credit and finance and the growth of corporations have created new kinds of personal property with which different systems of legislation have dealt differently,thus,producing conflicts of great importance and difficulty.Under such a historic period,Savigny,in the late 19th century,advocated overthrowing the old statutist rule or at least restricted its sphere of application to the case of succession to movables upon death and to the matrimonial property system.Since Savigny’s successful endorsement of the principle of lex situs,most European continental countries switched to the rule that movable property is governed by the law of the place where it is situated,subject to certain exceptions.

Anglo-American law retained the old rule of the statutists longer than did the civil law.This is probably due,in the first place,to Story,whose famous “general rule,” repeated over and over again,ran:“[A] transfer of personal property,good by the law of the owner’s domicile,is valid wherever else the property may be situated.”6 Nevertheless,modern situations made it inappropriate for the American law to follow the old doctrine any longer,and the American Restatement (First) of Conflict of Laws in the 1930s adopted the modern European continental view,and established the lex situs governs rights in movables.7(https://www.daowen.com)

Thus,it follows that the social,economic and technologic development since the late 19th century has made the maxim “mobilia personam sequuntur” obsolete and has led to the establishment of the principle that the lex situs governs the determination of rights in movables,just as it does with respect to immovables.Consequently,that property,including immovables and movables,is governed by the lex situs has become one of the widely accepted principles in modern private international law.

Nevertheless,some kinds of objects are by their nature and purpose not appropriate to be governed by the lex situs.First,the res in transitu,that is,goods transported from one county to another,and second,the means of transport,such as railways,cars,vessels,and aircraft.As goods in transit have no fixed resting place,the situs,apparently,is not the proper test,jurists,therefore,have advocated several laws,such as the law of the owner’s domicile,the law of the place of ultimate destination,the law of the place of dispatch as substitutes.^[2]As to the means of transport,the law of the flag,or the law of registry replaces the lex situs.Thus,a ship while on the high seas or in a foreign port can be alienated or mortgaged under the law of the flag.