The German private international law relating to property is-notwithstanding the complete absence of statutory rules-fairly simple, as it is entirely governed by the lex rei sitae. The distinction made in the early nineteenth century in this field between movable and immovable property has long been abandoned in German law. The lex rei sitae therefore rules supreme. The German judge will have to consider whether the property under consideration is movable or immovable only in those cases where the lex rei sitae makes this distinction in its own conflict rules, as does e.g., English law, because any renvoi or transmission contained in the foreign law, must in acordance with the general principle of German law be followed.
The situs of a right arising from contract is the place where the debtor has his habitual residence, see section VII above.
An exception to the rule of the lex rei sitae applies in regard to ships.
According to section 1 (2) of the law relating to Rights in Respect of Registered Ships of 15 November, 1940, such rights are governed by the law of the place of registration. The text of the law is a unilateral conflict rule which according to general principle must be read as if it was a bilateral rule (see para. 15 above). With regard to other objects which are in transit German law has failed as yet to develop any recognised rule;
practically every conceivable solution has been advocated by learned writers.
The lex rei sitae governs the loss, transfer and acquisition of property.
This has resulted in some peculiar difficulties in Anglo-German legal relations, because according to German law as a rule delivery is required for the transfer of ownership in respect of movables, while under English law the rule of section 18 (5) Sale of Goods Act may render this superfluous.
According to the view adopted by the Mixed Arbitral Tribunals after the 1914-18 war property dispatched from Germany to England was not acquired by those for whom it was intended earlier than at its actual delivery with the result that the English...
SECTION XII - Law Of Property
|Author:||E. J. Cohn|
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