French Supreme Court Breaks Land Taboo
On June 23rd, 2010, the French Supreme court for private and criminal matters (Cour de cassation) held that French courts had jurisdiction to determine the succession to a property situated in a foreign country.
The deceased person was a French national domiciled in Madrid. He owned two apartments, one in Spain and one in France, and monies on bank accounts. As his wife and his two children (one legitimate, one illegitimate) could not reach an agreement with respect to the succession, the wife sued the children before a French court. One of the children challenged the jurisdiction of the court on the ground that one of the properties was situated abroad.
The Court of appeal of Montpellier had retained jurisdiction over the Spanish immoveable. Remarkably, the Cour de cassation dismissed the appeal lodged against this decision and held that French courts did have jurisdiction.
The Cour de cassation offered a most innovative reasoning to justify that outcome.
First, it underlined that French courts had jurisdiction to determine the succession to part of the estate of the deceased person. It had jurisdiction over the moveables because the plaintiff was a French national (Civil code, art. 14), and it had jurisdiction over the immoveable situated in France because, well, it was situated in France.
But the best was still to come. The Cour de cassation ruled that, with regard to the Spanish immoveable, Spanish law operated a renvoi to French law, and that such renvoi was granting jurisdiction to the French court to decide the entire dispute and determine the succession to the whole estate. The court held that jurisdiction was only granted “to the exception of legal and physical operations flowing from the lex situs”, but it did not find that such operations were involved in the case and thus ruled that French courts had jurisdiction over the Spanish immoveable.
The most important part of the judgement reads:
Mais attendu qu’ayant retenu, par motifs adoptés, que les juridictions françaises étaient compétentes pour connaître partiellement des opérations de liquidation et partage de la succession, tant mobilière en vertu de l’article 14 du code civil, qu’immobilière en raison de la situation d’un immeuble en France, la cour d’appel, constatant que la loi espagnole applicable aux dites opérations relatives aux meubles et à l’immeuble situés en Espagne, renvoyait à la loi française, loi nationale du défunt, en a exactement déduit que les juridictions françaises étaient, par l’effet de ce renvoi, compétentes pour régler l’ensemble de la succession à l’exception des opérations juridiques et matérielles découlant de la loi réelle de situation de l’immeuble en Espagne.
It’s isn’t April, so this can’t be a joke, but…
Do you know whether any proceedings were brought (or are being brought) before the Spanish courts? It would be fairly interesting to know what they think about the Cour de Cassation attempting to claim jurisdiction over Spanish land.
It was not April, but it was the day after France played again such a great football against South Africa, so, maybe, out of desperation…
I am not aware of any proceedings brought in Spain in this case. Of course, a possible explanation for the outcome of the case could be the willingness to avoid having the dispute decided by several courts. The argument would be that, since one law would govern, the court should go all the way towards a centralized administration of the case.
Good for the court. It seems to have understood that if the choice of law rules of Spanish private international law referred to to French law, the most faithful manner of giving life to the law would be for a French court to do the work and so avoid unforced errors of law. If the Spanish court wishes in due course to ignore a French decision, that is a matter for them, but it seems to me that the cour de cassation has taken a sensible view of what the choice of law rules, with renvoi within them, actually mean. Of course, the very whisper of ‘renvoi’ is enough to induce apoplexy in various corners of England, but what a splendid way for us to mark le quatorze juillet.
“It seems to have understood that if the choice of law rules of Spanish private international law referred to to French law…”
Yes, indeed, but what is less easy to understand, or believe, is the alleged choice of law rule itself. Does Spanish law really point to the law of [non-Spanish law – whatever it is] for (any) questions relating to Spanish land?
In any event, and to take up Adrian’s second assertion: if we proceed on the assumption that the Spanish courts will, in due course, ignore the French decision, then what precisely was the point? It does not give life to the law to render a judgment that will be unenforced, or unenforceable, in the country where the land is situated, no matter how neat and tidy it looks in the foreign proceedings. At best, they will simply be told they will have to do it all again in Spain before they can be entered on the title register, after having spent time, money and effort litigating in Montpellier, the Palais de Justice, and wherever else.
Unless it has been recently altered, Spanish private international law on succession provided that succession to all property, wherever and whatever, is governed by the law of the nationality. Re Duke of Wellington and Adams v Adams show how that works in a case in which the lex patriae is British (it is English, because that is how a Spanish court would intrpret it, and it is a Spanish rule being applied) and the question of renvoi then arises (Wynn-Parry J and Browne-Wilkinson VC were a bit challenged by that). Both were English cases dealing with succession to Spanish land, and each did what the judge took the choice of law rule to tell him to do. Neither took the view that there was no jurisdiction (there plainly was, it being a succession case), and neither was concerned that a Spanish court might deny recognition. As to the ‘second assertion’, I neither know nor assert nor assume what a Spanish court would do if called upon to recognise the French judgment, though I suppose I would quite like to know. But if a court were to consider that it should decline to exercise jurisdiction wherever there may apprehend that a foreign court might withhold recognition from the (to it) foreign judgment, there would be a lot less adjudication than there is, which does not seem very desirable. I remain cheered by the approach of the cour de cassation.
The judgment mentions that the Spanish choice of law rule for immoveable succession is the law of the citizenship of the deceased person. This is consistent with my understanding of how Latin countries (ie Italy and Spain at least) focus quite a lot on citizenship as a connecting factor, but maybe Italian and Spanish readers will correct me.
More fundamentally, I think that the concern of the French court was to offer a single solution to the issue of the succession to the whole estate. This may lead to one heir getting alone the onwership of the Spanish apartment (because, for instance, another one would get the French immoveable, and the third the monies). Then, the issue for the Spanish court should only be to assess whether the solution is acceptable (from a Spanish point of view) taking into account what all heirs received overall, rather than looking only at whether all heirs would have got a piece of the value of the Spanish immoveable.
Ah. I had forgotten Re Duke of Wellington, at least to the extent that it showed what Spanish law was. The uncertainty in whether, having first been referred to Spanish law, and then referred back to English law, Browne-Wilknson and Wynn Parry should then take a Spanish judge to accept English law including its rule that the law of the situs governed the issue of succession is perhaps evidence that courts should not look to the doctrine of renvoi at all (the choice between single and total renvoi was, in the end, a coin toss, was it not? The expert witnesses couldn’t agree, and what Spanish dicta there was did not agree), but that is probably a debate for another day.
If that is still Spanish law, then perhaps I am being overly critical of the Cour de Cassation. An English court would take jurisdiction over the claim in the same circumstances, so why not a French one? My distaste for the outcome must result from the law of Spain, strange as it looks to English eyes (the only logical choices, one would have thought, would be the law of the situs or the law of the deceased’s last habitual residence). But if a country’s rules refer to a person’s national law, that country’s courts must be used to recognising judgments from foreign courts pronouncing on the rights to land situated within its borders.
A quick Internet search suggests that Spain applies renvoi (“remisión” in Spanish), but only if it leads back to Spanish law. On this basis, it would seem that a Spanish court would apply Spanish law to immovables in Spain if the deceased had been a French citizen. (I assume that French law still applies the lex situs to immovables). So a Spanish court is unlikely to recognize the French judgment, since the French courts would have applied the “wrong” law.
One would hope, however, that the Spanish would not necessarily fail to recognize a foreign judgment for the sole reason that the foreign court applied a different choice of law rule (although, I have to admit that a French court would have until as recently as 2007). After all, it should not fail to recognize a foreign judgment for the sole reason that it applied a different substantive rule, unless it is contrary to the public policy of the forum.
That is rather sneaky of the Spanish, but it also makes a great deal of sense (although one wonders why they don’t just apply the lex situs and be done with it).
Gilles: I wouldn’t say that the French court applied a ‘different substantive rule’ – it simply got Spanish law wrong. I suspect, given the nature of the rule, applying foreign law to a Spanish immovable would be seen as contrary to public policy in a Spanish court; hence the qualifier on renvoi that Trevor has mentioned.
One answer to Martin’s point might be that the Spanish take the perfectly rational view that a single law (lex patriae) applies to all succession to all property. If the law of the nationality, or the courts at the place of the nationality, would apply their own domestic law, it follows that a Spanish court will do just that, and good for them: there is no basis, that being so, to suggest that Spanish law or policy might be offended by the application of a non-Spanish succession provision to Spanish land. If the law of the nationality points elsewhere, fine too: it’s for Spanish private international laweyrs to work out what their original rule means in these circumstances. But none of this calls into question the original sense of the Spanish choice of law rule for succession, neither the deduction which the court de cassation made on the back of it.
I don’t know anything about Spanish law, but I assume that they would not recognize a foreign judgment unless the foreign court had jurisdiction. The French courts seem to have taken jurisdiction (at least in part) on the ground that the applicable law was French – on the basis of a renvoi (simple renvoi, not double renvoi) from Spanish law. However, in Spanish eyes, the applicable law would have been Spanish on the basis of a (simple) renvoi from French law. For this reason, one would not expect a Spanish court to accept that the French courts had jurisdiction on this ground. This would not be a case of refusing to recognize the judgment of the French court “for the sole reason that it applied a different substantive rule”: it would be because the French court did not have jurisdiction. Moreover, the idea that the courts of the situs have exclusive jurisdiction is widespread. It would not be strange if it applied in Spain.
you are making a different point, and I take it. While the Spanish should not deny recognition for the sole reason that the foreign court applied a different law (which was your first point), it would be reasonable if it considered that the foreign court did not have jurisdiction over an immoveable situated in France.
Now, I also agree with Adrian: the Spanish court should find that the outcome of the French proceedings (applying one single law to the whole succession) is not uninteresting and matches what their own rule would lead to.
Finally, I am not sure why, Martin, you say that the French court got the Spanish (choice of law) rule wrong. What it did not do was to take into account the renvoi that Spanish law would have accepted, but then that’s the issue of the vicious circle that someone has to break.
Still, as we all reflect on the manner in which renvoi may refine and improve our rules of private international law, should someone send a link to those members of the judiciary who consider that renvoi is or ought to be dead ? And to those of our legislators whose instincts are to stamp it out wherever they fear they might find it ? (And Gilles: I don’t suppose that is the flag of Andorra, is it ?)
It is the flag of renvoi: a bit complicated at first sight, but not meaningless when one reflects about it.
If it really is the flag of renvoi, it ought to rotate…
I know that Adrian loves renvoi, but this case illustrates its shortcomings. Let’s forget for a moment about the jurisdictional aspects of the case and just concentrate on choice of law. France has a choice-of-law rule that succession to immovables is governed by the lex situs. Spain had a choice-of-law rule that succession to all property – movables and immovables – is governed by the law of the nationality. The case concerns immovables in Spain owned by a French citizen. By applying simple renvoi the French courts reach the conclusion that French substantive law applies. If the case came before a Spanish court, it would also apply simple renvoi and hold that the substantive law to be applied was Spanish law. In this situation, the only advantage of applying renvoi is that each courts gets to apply its own substantive law, thus avoiding the need to ascertain foreign law. However, the price to be paid is that it has to ascertain the foreign conflicts rule. In any event, there is no uniformity of outcome. This would have occurred only if (a) one of the two countries had applied simple renvoi and the other had not applied renvoi at all; or (b) one of them had applied total renvoi (foreign court theory, as applied in England) and the other had applied either simple renvoi or no renvoi at all. In view of this, it is not hard to see why modern legislators – for example, the EU – prefer to do away with renvoi altogether (see Article 26 of the proposed EU regulation on succession).
As Adrian Briggs perfectly explains, Spanish conflict of law rule (art. 9.8 Civil Code) provides for the application of the national law of the decesead, no matter the nature of the estate. As for renvoi, yes, we admit it, particularly in case of succession, but only insofar as it serves to protect the fundamental principles of succession, i.e., the unity and universality of succession. From this point of view, the French judgment is to be approved.
Recognition: there is a bilateral convention between Spain and France of May 28th 1969, establishing several conditions for recognition and enforcement in civil and commercial matters. As for the law applied by the French Court, see art 5: “Recognition shall not be refused for the sole reason that the Court has applied a law other than the one that would have been applied under the rules of private international law of the requested State (…)” -and, by the way, Spanish Courts would also have applied French law, see art. 9.8 Cc supra.
As for the jurisdiction of the French Court, there is a provision regarding movable property of the deceased (art. 7.8: “The court of origin shall be considered competent for the purposes of this Convention in matters regarding movable estate if the deceased had his domiciled in the territory of the requiring State, or was national of it”), but none in regard to immovable, unless we interpret art. 7.4 (“the court of origin shall be considered competent when the action concerns a dispute over immovable assets located in the State of origin”) as covering the subject, which I doubt; I am pretty sure art. 7.4 strictly refers to in rem disputes. Therefore, there seems to be a gap in the Convention (I have tried to find the French version of it, without success), and we can speculate using the usual criteria for interpretation… But, sincerely, looking at Spanish case law I would bet that the French decision would be recognised here. Art. 22.3 of our Ley Orgánica del Poder Judicial establishes Spanish jurisdiction on succession matters if the deceased had his last domicile in Spain, or if there is immovable property in Spain: but we do not consider this jurisdiction as exclusive, therefore it is not an obstacle to recognition of foreign decisions on a estate including immovable property in Spain.
Besides, our courts have been very generous when applying art. 22.3 LOPJ: they have decided on succession related actions when the only link with Spain was the existence of an immovable in the territory, and the other data of the case pointed to another State (see STS num. 641/2008, June 25th). So we should accept the same attitude from other Courts. It is true that the path through which the Cour de Cassation reached its outcome is strange to our way of thinking, but neither it nor the outcome itself offend our ordre public.
To end, just one question about French case law: Gilles, is the situation you described that unusual in France? The fact is that I had already read about it in an article of a novel Spanish author, Isabel Rodríguez-Uría, based in turn on B. Audit’s Droit International Privé. I assumed it was a normal solution… chez vous.
I can think of few better ways of ending one’s days than with a British passport, an English domicile, and an estate in Spain. The thought that one might, at the same time, bequeath an occasion for renvoi would be just dandy (were it not for the fearful judges and legislators, as aforesaid).
many thanks for clarifying Spanish law on this.
With respect to the background of the decision, you are right to a certain extent. The Cour de cassation had suggested several times in the 2000s that French courts should accept renvois made by foreign laws in cases where the relevant immoveable was abroad. But each time, trial courts had actually not done it, and their decisions were nullified and the case was remanded to another trial court. This time, the trial court had done it, and the Cour de cassation could just confirm it.
Now, what was never ruled before, to my knowledge, was the jurisdictional issue, and the fact that renvoi would grant jurisdiction to the court. Furthermore, it seems that when the Cour de cassation actually applied its principles in this case, it was suddenly afraid by its own audacity and thus added this weird exception of “opérations juridiques et matérielles découlant de la loi réelle de situation de l’immeuble”.
Adrian: big smiley.
Gilles: I think that the exception of “opérations juridiques et matérielles découlant de la loi réelle de situation de l’immeuble” refers to the conditions needed for land registering of property rights derived from the succession.
Could a five year visiting professorship in Santiago be compensated with an estate in Spain?
A mortgaged one?
It is good to see Renvoi creating such a creative comment chain. Of course, single or double renvoi all depends on where you are starting. The conflicts between article 9 of the Spanish civil code insisting on unity of succession do conflict with article 12 which permits single renvoi. From a Spanish perspective, applying the succession law of nationality including its PIL does seem to be conditional upon article 9 not being breached.
From a French perspective, one would expect their PIL to accept renvoi twice, back to Spain, but again, Spain would probably not accept the renvoi since it breaches the unity principle.
Bring on Brussels IV and the abolition of renvoi:
Where this Regulation provides for the application of the law of a State, it means the rules of law in force in that State other than its rules of private international law.
However, the UK may prefer not to opt in to Brussels IV and thus continue to amuse us with its own idiosyncratic total renvoi conundrums.