History of the formation and evolution of resolving the conflict of qualifications regarding limitation of actions in private international law countries of English-American law and Germany

Abstract

The most cited example of the conflict of characterization in private international law is the procedural characterization of the limitation of action in the common law countries and its substantial characterization in the continental law. This article analyses the historical evolution of that conflict, from the medieval Italian glossators to the present day. In the late 19th century the Supreme Court of Germany rules in its famous judgement about a promissory note from the American State Tennessee. The Supreme Court didn’t try to reconcile national formal legal differences and so made the conclusion that there was no impact of time on the right, object of the claim although in the both legal systems: German and American there were statutes of limitation and in the both legal systems the right was barred. This judgement has become the “immortal shame” of the Supreme Court of Germany. This judgement has inspired a German legal scholar Kahn on writing his article about latent conflicts inherent in the different systems of law which later received the name of the conflicts of characterization in private international law. The solution of this conflict is to be made according to the approach of the functional equivalence of the legal institutions in the competing legal systems.