Page 80 - วารสารกฎหมาย ศาลอุทธรณ์คดีชํานัญพิเศษ

วารสารกฎหมาย ศาลอุทธรณ์คดีชำานัญพิเศษ

The reason for this different treatment of movable and immovable property was that,
for movables, the acquisition and transfer of property by way of international commerce

should be sure and stable, and independent from the accidental location of objects.
44
One can easily imagine here the idea of a virtual sphere of international commerce

developing away from the real, material sphere. The principle of the transferor’s domicile
was expected to work for stabilizing international commerce by linking the consecutive
good faith transactions based on the market of the owner. 45

On the other hand, and for the first time, the principle of lex loci rei sitae has

become predominant, particularly in Germany, since the first half of the 19 century,
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46
giving prior consideration to the real holding, occupation, or possession of movables
and to a certain kind of commerce in favor of such a real-material-oriented social

relationship. It is remarkable that the real-material-oriented principle of lex loci rei sitae
had a particular background of a social structure in Germany different from other,
commercially more developed European countries.
47
For example, the non-causal relationship of ownership transfer disconnected
from contract obligation, and the non-causal relationship between the bill of exchange

and the substantial obligation, reflect similar aspects of the whole legal structure
characterizing German society as well as this principle of lex loci rei sitae.

44 As for the adoption of the idea in 13 to 14 century Italy, see the interim report of study in HARATA
th
th
(supra note*) 356-58.
45 However, there remain conflict-of-laws issues regarding the physical control or the possession of
the movable. As for this point, the law of the transferor’s domicile has been generally deemed to pave the way for
the lex loci rei sitae.
A more difficult conflict-of-laws issue is the conflict between several concurrent laws on the acquisition
of legal titles, for instance the conflict between the law of the transferor’s domicile, the lex loci contractus, and the lex
loci rei sitae which acknowledges the immediate acquisition of ownership due to the possession based on a transaction.
While, for these issues, the doctrine supporting the law of the transferor’s domicile has not successfully
produced a convincing solution, it is still remarkable that it took into serious consideration the stability of international
commerce based on the consecutive secure transactions of legal titles, independently of the place of physical existence.
46 As influential doctrines, see SAVIGNY, System des heutigen Römischen Rechts, vol.8 (1849) 171-72,
176-77. WÄCHTER, Über die Collision der Privatrechtsgesetze verschiedener Staaten, XXV AcP (1842) 384ss.
47 This connection between the choice-of-law rule of lex loci rei sitae and the considered socio-economic
structure was most apparent in Savigny’s whole theory of private law. See HARATA (supra note*) 358-65.

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