The Situs of Debts in the Conflict of Laws—Illogical, Unnecessary and Misleading

Abstract

It has been suggested by several writers that property of an intangible nature, such as debts, should be subject to the same choice of law rules as those which govern tangible property and immovable property. The idea that the lex situs should be adopted to determine proprietary questions relating to debts is particularly prevalent in cases where the English courts are called upon to decide whether to recognise a foreign government's actions or whether to garnish a debt. But should one of the most dominant choice of law rules, that of the lex situs, gain an even wider application than it already clearly has? Before answering this question any suggestion that the lex situs should be adopted for matters relating to debts has to face the obvious logic that that which cannot be touched or moved cannot be said to be capable of a position or a situation. This is, of course, self-evident but apart from an occasional assertion the courts have not felt constrained by the logic of the matter and for a number of purposes they have stated rules to give a debt that characteristic which it lacks: a physical location.