Sunday, May 7, 2017



 In judging of the various conditions and qualities (Zustande) of a person, whereby the capacity for rights and the capacity to act are determined, a pure and simple application of that local law to which the person himself belongs by his domicile, is the only possible course (§ 359). This principle, it is true, has not remained uncontradicted (a). But the number of its supporters is so overwhelming, that it may, notwithstanding, be described as an almost universal opinion ; it has even been confirmed by a universal consuetudinary law in Germany (b). This, too, is the proper signification of personal statutes, to which notion so much importance was attached in former times (§ 361, No. 1). It would be a mistake, however, to estimate this accord as very complete ; it is in great measure only apparent. The following distinction was very early attempted, and has lately been asserted with great emphasis (c). We are to distinguish between the mere abstract existence of the legal qualities of a fierson and the legal effects of these qualities ; that is to say, the rights and limitations of the person arising out of them. The qualities themselves must be judged according to the local law of the domicile ; but the legal consequences not according to it, but according to another local law.

What law ? Of this we have to speak afterwards. The advocates of this distinction, therefore, restrict to the abstract qualities or conditions themselves the generally received opinion, and the universal consuetudinary law depending on it. The meaning of this distinction will become clear from the following instances : —Among the qualities themselves are those of the ward, the pupil, the minor, the prodigal; also of females, of the married woman, of legitimate or illegitimate children, etc. The question, therefore, whether any one is under age or not,—that is to say, what is the limit of minority,—is to be decided according to the law of the domicile. On the other hand, the rights and restrictions of the minor are among the juridical effects, and are therefore, by this doctrine, not to be judged according to the law of the domicile.1

At all times, however, many writers have made no such distinction, but have determined the legal effects, as well as the qualities themselves, solely according to the law of the person's domicile (d). And in accordance with them, I too must altogether reject this distinction. I maintain it to be arbitrary and illogical ; for any real ground for drawing such a line is entirely wanting. If we look into the matter closely, we find no other difference than this, that many personal qualities or states are known by specific names, while others are not. But this accidental and indifferent circumstance can afford no reason for applying to them different territorial laws. We call him major who possesses the fullest capacity to act, attainable by age. It is therefore only a name for certain legal effects, for the negation of previous limitations of capacity. So we call him a minor who does not yet possess that full capacity. It is a name for the negation of the condition of perfect capacity. If a law lays down, in regard to minority itself, certain degrees of capacity, without affixing to them specific names, no ground can be discovered why these degrees of capacity, just as much as the commencement of complete capacity, should not be judged by the law of the domicile.

This assertion will become still more evident by the following example : —The defenders of that distinction admit that a Frenchman twenty-one years old must be regarded as major and of full capacity in Prussia, where twenty-four years—and likewise in the countries of the Roman law, where twenty-five years—are the terms of full age; for by article 488 of the French code, he has received the rank of majeur, and has accordingly an essential quality to which the law of the domicile is to be applied. But the same code allows to minors, partly at sixteen, partly at fifteen and eighteen, years of age, certain more limited powers, without constituting them a special class with a specific name (c). This is therefore, according to that theory, no essential quality, but merely a legal effect,—a specially con stituted restriction of the person ; and the law of the domicile does not apply to it.

It is therefore my opinion, that every one is to be judged as to his personal status always by the law of his domicile, whether the judgment is at home or abroad, and whether the personal quality itself, or its legal effects, be the object of the judgment.*

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