The Address As A Connection Factor

The address as a connection factor

The concept of Domus was known in Roman law and still retains its importance in civil law. Here, however, we discuss the address as a connection factor in the law choice process. For the purposes of our discussion, we will adopt the popular definition of Story’s address: ‘That is the domicile of a person where he has his true, fixed, permanent home and main establishment, and to which, when he is absent, he intends toto return ‘.

The elements of residence (corpus) and the intention to remain and / or return (Animus manndi et revertendi) are also present in the Roman law concept of Domus. However, what differentiates the address of the Common Law, is the distinction between home of origin and address of choice

Home of origin is the domicile obtained by a person at birth;In general, it will be derived from the domicile of a father or will be attached to the place of birth. Indeed, the home of origin will often coincide with nationality. A person can leave his home of origin in favor of a new address of choice. To make such a change, you must express the intention of taking a new abode and abandoning the old. However, it is possible that the home of origin can relive in cases where the address is abandoned the choice and a new address of choice is not designated as a connection factor, the address is particularly useful in the United States and the United Kingdom, where the need for assimilation of the incoming population arises.

The application of the local law of domicile, instead of a multiplicity of national laws, is a practical need.

In a federal nation, such as the United States, the domicile is particularly assigned to the State (that is, the territorial unity) with which a person retains a persistent relationship. Nationality (citizenship) still retains its importance in public law, although the principle of Jus Soli is generally requested the acquisition of national citizenship at birth

Although the domicile seems to meet the practical needs of a multicultural society, however, the peculiarities of the domicile of customary law become evident in the international conflict of laws, especially when a Civil Law Court is called to apply the concept of domicile of the lawcustomary

For example, suppose that a Greek court, by applying the Greek norms of election of law, is called to apply the national law of a citizen of the United States to determine the law applicable to the succession of this person. In essence, the Greek judge has instructions to apply the ‘law of the United States’ to the succession. Naturally, the ‘United States Law’ must refer to the Law of a State of the United States. In this example, the solution could be provided through the definition of ‘state citizenship’ in the Constitution of the United States for the citizens of the United States who are citizens ‘of the State in which they reside’ and, in this context, residence means domicile

Consequently, a reference of election of law by a Greek court to the ‘Law of the United States’ as a person’s national law will include a reference to the law of the State in which this person is currently domiciled. This reference provides an easy transition from national law to the domicile of customary law

However, this transition does not work well when there is no reference rule or when the person of the United States in our example is domiciled outside the United States and, therefore, maintains an American citizenship but has abandoned its state citizenship. A possible solution in this case would be to send, by a limited forwarding, the question to the current law of domicile outside the United States. Another solution, particularly followed in the United Kingdom, would be to refer to the law of the home of origin, although it was abandoned by that person when he moved to another state or abroad.

These peculiarities of the address have been criticized by conformators of customary law that defend a less rigid system for the designation of personal law.

Taking into account the deficiencies of the principles in competence of nationality and domicile, academics of contemporary conflicts have proposed a third option: habitual residence.

This connection factor is gaining popularity in the international conflict of laws, and is preferred in the modern European rules of law choice. In the international context, this connection factor became especially popular with the 1980 Hague Convention on the civil aspects of the international kidnapping of children. According to article 3 (a) of this convention, “the transfer or retention of a child must be considered illicit when (a) violates the rights of custody attributed to a person, an institution or any other organism, either in a wayjoint or alone, in accordance with the law of the State in which the child usually resided immediately before extraction or retention ‘

In the same way, the recent and.OR. The Succession Regulation uses this connection factor as well as a jurisdiction base for succession disputes, as a connection factor for the designation of the law applicable to succession.

The determining use of this connection factor in the previous examples and in several other international and European instruments makes its definition deeply crucial. However, a precise definition of habitual residence is markedly lacking in international conventions and European regulations. It is said that the definition of this term has been resisted so that the courts enjoy greater freedom to determine the habitual residence in a more flexible way than would be the case of nationality or domicile. Be that as it may, the lack of a definition can often create legal uncertainty

Therefore, the courts are allowed to determine what a habitual residence and, in fact (factum), where it is located. This determination is made with reference to objective factors (P. Eg., Duration of the stay in one place), as well as subjective factors (p. Eg., Attempt to settle in a particular place, relationships and connections with a place, etc.). Based on these factors, habitual residence can be formed over time and can also be lost instantly when the individual leaves a place and moves to another place.

It should be obvious that the habitual residence, as a connection factor, is located somewhere between nationality and domicile, although it is more closely related to home than nationality. However, it should also be clear that the usual residence and domicile are not the same. The habitual residence was designed as a less persistent and more flexible connection factor. While the domicile and habitual residence can coincide, and often coincide, technically it is still possible that habitual residence and domicile (particularly the home of origin) may differ.

However, the confusion between these two concepts is evident in several statutes, especially in the United States, where it seems that the two terms are often used interchangeably. For example, article 38 of The Civil Code of Louisian. Article 39 continues: ’A natural person can reside in several places but cannot have more than one home. In the absence of a habitual residence, any place of residence can be considered the domain of one of the choice of people whose interests are affected

It should be noted that ‘habitual residence’ in the sense of these provisions should not be confused with the term ‘habitual residence’ in article 3 of the Hague Agreement on kidnappings of children as discussed above.

There is also confusion about the legal treatment of this connection factor. Although the predominant opinion is that this connection factor must be treated as a matter of fact (factum) and not as a law (Jus), the opinion has been expressed that the determination of the habitual residence must be done by reference to the law of the law ofForum and is subject to unrestricted appeal review

Finally, the editors of the recent and.OR. The Succession Regulation admitted that, in some cases, the designation of habitual residence can be a complex task

Conclusions

The connection factors are considered facts that tend to connect a transaction or event with a particular law or jurisdiction under which it is considered that the connection is of many types, but are grouped into three types that are nationality, residence and address in whichThis position is located. maintained so far and within these factors consider things as the place of conclusion or execution of the contract, the place where the grievance or crime was committed,

However, the connection factors are taken into consideration and weighed by the courts and the referees when determining the appropriate law that will be applied when deciding the different cases or disputes that arise in different countries. The concept of connection factors was considered for the reasons that there are different territories in the world in which each of them has its own legal system.

Known as ‘Municipal Law’ and these systems vary from one territory to another, so that the courts of one the territory must take into account the municipal laws of other territories where the court faces the circumstances that are sufficiently connected with a foreign systemof municipal laws by which the case must be decided. Here the objective of the Court is to connect an individual with a particular system or law system and the domicile is a possible determining factor that the Court can use. Therefore, when the dispute arises and involves more than one country, then it is necessary to decide which country. The Court has jurisdiction to know the case and determine under what law the claim / dispute can be decided to ensure that the sentence is recognized and executed in the other countries involved

Bibliography

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