STUDIES IN LOGIC, GRAMMAR
AND RHETORIC 32 (45) 2013
DOI: 10.2478/slgr-2013-0004
Katarzyna Bagan-Kurluta
University of Bialystok
QUALIFICATION OF CONCEPTS AND ITS PROBLEMS
IN CASES WITH FOREIGN ELEMENT IN POLAND
AND THE UNITED KINGDOM
Abstract. Qualiﬁcation is the basic instrument used in the process of application
of the law. It is impossible to apply the law without conducting it. The
main internal source of collision law in Poland, Act of private international law
dated February 4th
, 2011, does not specify how to carry on the process of the
qualiﬁcation, and doctrine is of the opinion that the Polish court applying foreign
law should interpret the foreign concepts according to the rules of this law
and give them such meanings as this law assigns to them. But also there are
four doctrinal proposals concerning methods of qualiﬁcation. The ﬁrst one (with
various modiﬁcations) is relatively popular in a number of countries, while the
Polish doctrine has the greatest respect for the latter: 1) lex fori approach, 2) lex
causae approach, 3) autonomous method and 4) functional method (or collision
lex fori approach).
The English judge applying the rules derived from his own internal law
remembers about the function of private international law – and therefore takes
into account the rules and institutions adopted in the foreign laws. That is
application of lex fori approach modiﬁed because of the function of collision
law, indeed reminiscent of a functional method. However, due to the lack of
a uniform approach to qualiﬁcation and identiﬁcation of the only way to proceed
by the doctrine and case law, it is permissible to move away from the use of this
method. For instance it is possible to use the lex causae approach, if it leads to
an equitable solution.
Lack of regulation of qualiﬁcation gives a person applying the law a freedom,
but at the same time leads to uncertainty about the eﬀects.
The main internal source of collision law in Poland is Act of private
international law dated February 4th
, 2011. It settles the law applicable to
the private law relations connected with more than one country, containing
general regulations of application of collision norms and speciﬁc collision
norms responsible for choice of law in speciﬁc cases. However, it does not
specify how to carry on the process of the qualiﬁcation of concepts (notions),
and doctrine is of the opinion that the Polish court applying foreign law
should interpret the foreign concepts according to the rules of this law and
ISBN 978–83–7431–371–1 ISSN 0860-150X 67
Katarzyna Bagan-Kurluta
give them such meanings as this law assigns to them. The Act also does not
indicate what should be interpreted in the process of qualiﬁcation and does
not deﬁne qualiﬁcation.
According to M. Pazdan (2009, pp. 55–56) the qualiﬁcation is the interpretation
of the expressions describing the scope of the collision norm
undertaken in order to establish the conditions for its use. This narrow
understanding of qualiﬁcation as process concerning only the scope of the
collision norm was extended in the doctrine. Qualiﬁcation process shall also
be applied in relation to the concepts being a part of the point of contact in
the collision norm. As a result, qualiﬁcation in a broader sense can be deﬁned
as the interpretation of expressions/notions used in the collision norm
in order to apply this norm – and therefore also as subsumption, an assignment
of the facts in the process of application of law formulated by the
interpretation of the notions used in the rules of collision law. If, however,
the qualiﬁcation of the scope of collision norm consists of both interpretation
and subsumption, it is enough to provide interpretation only while
qualifying the point of contact.
The method of qualiﬁcation process may vary depending on the time
when it is used. Owing to the French scholar, E. Bartin (1930, p. 565 and
next), the division of qualiﬁcation exists in the Polish doctrine – there is
a primary and secondary qualiﬁcation. From the point of view of this division,
the most important is the fact (moment) of an indication of the
applicable/proper law, as the ﬁrst one takes place before the indication and
the second – just after it. Therefore, we assume that the primary qualiﬁcation
applies to the forum law rules (collision norms), and secondary – to
norms (as it seems, not only of conﬂict law) of the indicated law and their
correct application.
In the absence of a statutory reference how to carry on the qualiﬁcation
process, the proposals come from the doctrine. It provides four diﬀerent
approaches – methods of qualiﬁcation. The ﬁrst one (with various modiﬁcations)
is relatively popular in a number of countries, while the Polish
doctrine has the greatest respect for the latter: 1) lex fori approach, 2) lex
causae approach, 3) autonomous method and 4) functional method (or collision
lex fori approach). (Bagan-Kurluta, 2002, pp. 61–69; Bagan-Kurluta,
2011, pp. 126–133; Bagan-Kurluta, 2012, pp. 51–56).
Lex fori approach allows to apply the law of the forum to the interpretation
of legal concepts, which means that the ways of interpretation
should be found in this legal system and the meanings of the notions should
be the same as in this internal (private) law. In fact it means that we
should interpret the concepts provided in the rules of private international
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law the way it is done in civil law. Lex causae approach provides application
of a law that would probably be proper in speciﬁc case, but it has
not been chosen yet. It is perfect for secondary qualiﬁcation, because it
takes place after indication of law. If we know the proper law (the chosen
one), we can easily apply all the rules of interpretation and also take all
the meanings of legal concepts from this law. Autonomous method makes
universal law out of collision law, which means that hypothetically we have
one catalogue of notions being used in private international law and their
universal meanings for all the countries in the world. That is untrue. The
last approach underlines the importance of the international function of collision
law. In a consequence of application of this method we should take
the ways of interpretation and the meanings of legal concepts from our national
(forum) collision law, remembering that they are diﬀerent than the
ones takes from our (forum) internal (civil/private) law. The problem is
that in fact the methods of interpretation are the same for both – collision
and private laws. The meanings can diﬀer, because we should respect
the international function of collision law, that is why we should accept
the idea that the meaning of a notion in international case may be a little
bit diﬀerent than in the national case. For instance in a case of marriage
(national one), a notion of marriage is taken from deﬁnition written in
art. 18 of the Polish Constitution (Dz. U. z 1997 Nr 78, poz. 483). Marriage
is an union between a man and a woman. When we have the same case,
but with so called foreign element (international one) it is possible to accept
the idea that the legal concept of marriage also contains the same-sex
unions.
Lack of rule responsible for qualiﬁcation in the Polish law can be interpreted
in two ways. Firstly, it gives the possibility to apply a method
chosen for a given case. Secondly, an issue of classiﬁcation seems to be the
more controversial as the more situations unknown to Polish law arise in
courts or just as subjects of public discussion. Its best example was the
discussion about a change of private international law regarding marriage,
and especially a notion of marriage itself. The main question was if a draft
was contrary to shown above constitutional rule regarding marriage. In fact
the discourse involved not an issue of inconsistency but a method of classiﬁcation
of the concept of marriage.
∗
∗ ∗
In the United Kingdom the interpretation of terms is largely based on
English rules of private international law, assuming the existence of diﬀerences
in meanings between collision and domestic/internal law, and assum-
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Katarzyna Bagan-Kurluta
ing that the meaning of the terms in the light of the former are wider than
in the light of the latter. Deﬁnitions should be relative and functional, and
besides, they should be created separately for each case, because meaning
of the concept accepted in one case must not necessarily correspond to the
situation in the other case. When analyzed, institution or rule of foreign
law has no equivalent in the English law, the court gives it the meaning of
the institution or rule closest to it, existing in the English law, it is possible
to also use the analogy to the institution from the foreign law. (De Nicols
v. Curlier [1900] AC 21).
The judge applying the rules derived from his own internal law remembers
about the function of private international law – and therefore takes
into account the rules and institutions adopted in the foreign laws (Cheshire
and North’s, 2004, p. 38). That is, as it seems, application of lex fori approach
modiﬁed because of the function of collision law, indeed reminiscent
of a functional method. However, due to the lack of a uniform approach to
qualiﬁcation and identiﬁcation of the only way to proceed by the doctrine
and case law, it is permissible to move away from the use of this method,
which can take place, as it seems, accidentally.
It is therefore possible to use the lex causae approach, if it leads to an equitable
solution. (In the Estate of Maldonado [1953] 3 WLR 204; [1953] 2 All
ER 300; [1954] P. 223). In addition, the meaning of the notion of citizenship,
as the universally used concept of international function, is determined on
the basis of this law, which is used to determine its existence, and therefore
the national law (Oppenheimer v. Cattermole [1972] 3 WLR 815), while the
nature of other points of contact is determined by the English collision law.
(Graveson, 1974, p. 58).
According to the principle of application of its own procedure by the
court, the English court may make a performance of the contract in the light
of the relevant foreign law valid and eﬀective dependent on the compliance
with the rules of the English procedure (Leroux v. Brown [1852] 12 CB 801)
or analyze foreign concept of limitation of claims and if it corresponds with
the English one, use the English procedural provisions regardless of whether
the institution is a part of the procedure or substantive law in the foreign
legal system. (De Reneville v. de Reneville [1948] P. 100). Although with
regard to this last point, the court since the entry into force of the Foreign
Limitation Periods Act of 19841 should always apply the proper foreign
law. However, the court may very well decide about the qualiﬁcation of
institutions based not on a strict division of the institutions of substantive
and procedural law, but on the circumstances of the case (Re Fuld’s
Estate (No. 3) [1968] P. 675), or just very liberally assume that an institu-
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tion is part of the substantive law, but in fact, it is regulated by the rules
of the English civil procedure (Fentiman, 1998, p. 39). Equally liberal approach
to the qualiﬁcation of institutions, where there is a discrepancy in
the location of the institution as part of the process or the material law,
is an outcome of the assertions of the doctrine, as well as of the case law
in some part, with regard to the legal presumptions and burden of proof.
In the case of the latter, it is suggested to choose between two methods
of qualiﬁcations – the lex fori or rather the lex fori in the broader sense
(Graveson, 1974, pp. 46–53; See Re Korvine’s Trusts [1921] 1 Ch. 343) or
the lex causae (Fentiman, 1998, pp. 40; Re Fuld’s Estate (No. 3) [1968]
P. 675).
Some scholars, such as A. Briggs (2007, p. 1528) consider the fact that
the qualiﬁcation of a situation as falling within the speciﬁc category of legal
institution – that is, as part of the substantive law, the law of marriage, etc.
should be held in the conceptual structures of English law, but bearing in
mind that the ﬂexible use of analogy may lead to a rational solution.
It should be assumed that the British courts generally apply a speciﬁc
lex fori method described above, but they can use it in modiﬁed by
a Canadian scholar, J.D. Falconbridge, form. He assumed that the qualiﬁcation
is a two-step process. The ﬁrst stage involves the use of lex fori
to deﬁne the scope of legal category (concept), the second – the analysis
of the relevant foreign norm in its own context in order to determine
whether it ﬁts within the scope pre-determined by the lex fori. (Collier,
2004, pp. 17–19). This means that the courts actually do not use foreign
qualiﬁcation. This two-steps process is also seen by other representatives of
the English doctrine. They use the division into classiﬁcation of the cause of
action, which enables the identiﬁcation of the category of the legal institution,
and the classiﬁcation of a rule of law which enables the identiﬁcation
of the collision norm, which is to be applied, and as a consequence of its
application – an indication of the applicable/proper law. (Hayward, 2006,
p. 7–8, Cheshire, North’s, 2004, p. 36 and next). The ﬁrst one is deﬁned
by G.C. Cheshire, P. North and J.J. Fawcett as assigning the question at
issue in the facts considered by the court to the relevant legal category (and
thus the discovery of the true cause of claim), in order to reveal the collision
norm – relevant and proper to apply. (Cheshire, North’s, 2004, pp. 36;
Tezcan v. Tezcan [1992] 87 DLR (4th) 503; Re Musuru’s Estate [1936] 2 All
ER 1666). The second is to apply the appropriate collision norm. While
to the ﬁrst of these relate all of the foregoing, the indication of the basis
(i.e. on the occasion – of the method) of qualiﬁcation, in the second of them
it is problematic.
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Katarzyna Bagan-Kurluta
In matters related only to the area of England the base (and subject) of
qualiﬁcation are generally the rules provided in the domestic/national law.
In cases with the foreign element, because of the speciﬁc nature of conﬂict
of laws, even before the start of qualiﬁcation of the English norm one should
make sure of the purpose to be realized as a result of its application. The
same can be said about qualiﬁcation of foreign norms, provided that it is
conducted according to the rules provided by the indicated foreign law – but
again, with the objectives to be achieved as a result of their use in mind.
In matters of family law doubts about the method of qualiﬁcation raised
in regard to issue of consent to marry, and potential conﬂict of qualiﬁcation
(here, in particular in English-French cases) while deciding about it as
a material or formal prerequisite of the marriage. (Simonin v. Mallac [1860]
2 Sw & Tr 67, Ogden v. Ogden [1908] P 46; Lodge v. Lodge [1963] 107 Sol
Jo 437; Mahadervan v. Mahadervan [1964] P. 233; Shahnaz v. Rizwan [1965]
1 QB 391; Apt v. Apt [1947] P. 127; [1948] P. 83 (CA); [1947] 1 All ER 624;
Starkowski v. Attorney-General [1954] AC 155; Graveson, 1974, pp. 53–56).
∗
∗ ∗
To recapitulate, the qualiﬁcation is the basic instrument used in the
process of application of the law. It means that it is impossible to apply the
law without conducting it. Lack of regulation of qualiﬁcation gives a person
applying the law a sort of freedom, but at the same time leads to a kind of
uncertainty about the eﬀects. For example, this problem emerges in the case
of ambiguous term, such as domicile. As a result, the method of qualiﬁcation
will decide whether we are dealing with domicile in a particular country.
Each method has disadvantages – the use of the ﬁrst, apart from the need
to carry out the re-interpretation of the term, is associated with doubts as to
the possibility of using all of the provisions contained in the law forum (e.g.
art. 26–28 of the kodeks cywilny (Dz. U. z 1964 Nr 16, poz. 93 z późn. zm.)).
The use of the second means, in turn, acceptance of a false assertion that
the State determines the domicile of a person (after all, it is a relationship
created by a person, not by the state). It can be assumed that this is a way
of multiplication of problems connected with domicile – by denying the
existence of domicile or creating a situation in which one person has more
than one domicile. Analysis of utility of the third method, in turn, leads
to the conclusion that it can only be used for interpretation of the Polish
collision norms, so to the interpretation of foreign rules we need to apply
one of the methods already mentioned here (Bagan-Kurluta, 2001, p. 106),
for example, to understand it as it is understood by foreign collision law
(Pazdan, 2009, p. 53).
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N O T E S
1 Art. 1 Application of foreign limitation law. (1) Subject to the following provisions of
this Act, where in any action or proceedings in a court in England and Wales the law of
any other country falls (in accordance with rules of private international law applicable
by any such court) to be taken into account in the determination of any matter- (a) the
law of that other country relating to limitation shall apply in respect of that matter for
the purposes of the action or proceedings subject to section 1A; and (b) except where
that matter falls within subsection (2) below, the law of England and Wales relating to
limitation shall not so apply. (2) A matter falls within this subsection if it is a matter in
the determination of which both the law of England and Wales and the law of some other
country fall to be taken into account. (3) The law of England and Wales shall determine
for the purposes of any law applicable by virtue of subsection (1)(a) above whether,
and the time at which, proceedings have been commenced in respect of any matter; and
accordingly, section 35 of the M1Limitation Act 1980 (new claims in pending proceedings)
shall apply in relation to time limits applicable by virtue of subsection (1)(a) above as
it applies in relation to time limits under that Act. (4) A court in England and Wales,
in exercising in pursuance of subsection (1)(a) above any discretion conferred by the law
of any other country, shall so far as practicable exercise that discretion in the manner in
which it is exercised in comparable cases by the courts of that other country. (5) In this
section “law”, in relation to any country, shall not include rules of private international
law applicable by the courts of that country or, in the case of England and Wales, this Act.
http://www.legislation.gov.uk/ukpga/1984/16/section/1 (accessed October 25, 2012).
R E F E R E N C E S
Apt v. Apt [1947] P. 127; [1948] P. 83 (CA); [1947] 1 All ER 624.
Bagan-Kurluta K. (2012). Sprawy rodzinne w polsko-brytyjskim obrocie prawnym.
Białystok: Trans Humana, 51–56.
Bagan-Kurluta, K. (2002). Kolizja kwaliﬁkacji. Przedawnienie roszczeń. Stan aktualny
– uwagi de lege ferenda, Studia Prawnicze, 152 (Volume 2), 61–69.
Bagan-Kurluta, K. (2011). Prawo prywatne międzynarodowe. Warszawa: C.H. Beck,
126–133.
Bartin E. A. (1930). La Doctrine des Qualiﬁcations et ses rapports alec la caract`ere
national des r´egles du Conﬂit des Lois. Rec. De Cours, 1, 565 and next pages.
Briggs, A. (2007). Private International Law. In A. Burrows (ed.), English Private
Law (p. 1528). Oxford: Oxford University Press, 2007).
Cheshire, North’s (2004). Private International Law. LexisNexis: London, 38.
Collier, J. G. (2004). Conﬂict of Laws. Cambridge: Cambridge University Press,
17–19.
De Nicols v. Curlier [1900] AC 21.
De Reneville v. de Reneville [1948] P. 100.
Fentiman, R. (1998). Foreign Law in English Courts. Pleading, Proof and Choice
of Law. Oxford: Oxford University Press, 39.
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Katarzyna Bagan-Kurluta
Foreign Limitation Periods Act of 1984, http://www.legislation.gov.uk/ukpga/1984
/16/section/1 (accessed October 25, 2012).
Graveson, R. H. (1974). Conﬂict of Laws. Private International Law. London: Sweet
& Maxwell, 58.
Hayward, R. (2006). Conﬂict of Laws. Sydney, London: Cavendish Publishing Limited,
7–8.
In the Estate of Maldonado [1953] 3 WLR 204; [1953] 2 All ER 300; [1954] P. 223.
Leroux v. Brown (1852) 12 CB 801.
Lodge v. Lodge (1963) 107 Sol Jo 437.
Mahadervan v. Mahadervan [1964] P. 233.
Ogden v. Ogden [1908] P 46.
Oppenheimer v. Cattermole [1972] 3 WLR 815.
Pazdan, M. (2009). Prawo prywatne międzynarodowe. Warszawa: Lexis Nexis, 55–
56.
Re Fuld’s Estate (No. 3) [1968] P 675.
Re Korvine’s Trusts [1921] 1 Ch. 343.
Re Musuru’s Estate [1936] 2 All ER 1666.
Shahnaz v. Rizwan [1965] 1 QB 391.
Simonin v. Mallac (1860) 2 Sw & Tr 67.
Starkowski v. Attorney-General [1954] AC 155.
Tezcan v. Tezcan (1992) 87 DLR (4th) 503.
Ustawa z dnia 23 kwietnia 1964 r. Kodeks cywilny (Dz. U. z 1964 Nr 16, poz. 93).
74