Law : LA LEY Actualidad

Section 5 - Index  - Section 7

Law : El Derecho Tribunal Supremo

Appel : Tete Imaginaire Denney Collection

Lessons from the Denney Collection : 6 Does "Spanish Law" or "English Law" apply?

Now it is not the purpose of this paper to discuss at length the process by which a Spanish Judge, in applying the relevant rules of Spanish and English Private International Law, would eventually reach a point where he would try to apply Article 12.2 of the Spanish Civil Code, but, for completeness, the following diagram represents my lay appreciation of the situation.
 

For our purposes, it is sufficient to register that there is an unresolved question in Spanish Law, which makes it impossible to claim, as yet, either that the material law of Spain or the material law of England applies in the case of an Englishman domiciled in Spain. As a result we should treat with extreme caution any claims made such as: "English Law applies" or "Spanish Law applies" and should content ourselves with looking at the implications of the two possible end results of a decision in the Supreme Court:

· Supposing that "English Law applies" to the will of an Englishman domiciled in Spain: Because the material law of England knows no restrictions on the freedom to give, an Englishman, may leave everything to his cat in his will. If therefore "English Law" applies to the will of our hypothetical Englishman living in Spain, then McCavity his cat, as his universal legatee, inherits everything and the heirs nothing. · Supposing that "Spanish Law applies" to the will of an Englishman domiciled in Spain: Our Englishman’s will is treated as if that of a Spaniard. The material law of Spain reserves a strict portion of the estate for his heirs, therefore even if the cat is named as sole and universal legatee in the will, the most he can expect is the third of the estate that is freely disposable.

Because the question is not settled, it would be just as presumptuous for the cat to claim universal rights on the cream and walk off with the bowl as it would for the heirs to ladle out a sizeable portion for themselves and leave the remainder in the bowl for the cat. If wise, both parties will amicably share the cream, and the Supreme Court never gets to answer the question. But if McCavity, as universal legatee, presumes a right to exercise his hidden paw in pre-emptive action there is a distinct chance that he may place the cream beyond reach of the heirs for sufficient time to enter into full possession of it.

In the Denney case, if one party were to seize the initiative by proclaiming themselves King or Queen of the Castle of Salvatierra and then deny absolutely the rights of other claimants, they would have a considerable advantage. They would have more or less freedom to act, as of apparent right, until eventually the other party managed to challenge them in the Spanish Courts. Who in rural Spain would be aware of the finer points of Private International Law? Who in France would understand Spanish or English Law? Who in England would understand Spanish or French Law? The potential for confusion was high and the likelihood of resolution was low.

Besides, there was a large cargo of art already seized and despatched to a friendly port and the castle was already occupied. All that remained was to proclaim a particular interpretation of the will as being definitive and it would quickly come to be believed. This could then be used to justify the occupation of the castle and the closing of its gates against any heirs who might dare to suggest that the will might bear a different interpretation.