Section 1.1. Definitions and Interpretations.
Paying Agent: any Constructive Trustee(s) and the Institutions thereof that are appointed by
the Unelected/Elected Controllers of the Establishment World System of Things to look after the
paying of interest and principal on the securities transferred by the Transfer Agents from the
Unelected/Elected Controllers of the Establishment World System of Things Sovereign-DebtBanking-Commercial-Systems and now from this point forward these Paying Agents shall transfer
all these assets from the Sovereign-Debt-Banking-Commercial-Systems into the Private “SUNKE
Temple Trust Global Pay It Forward Master Account Treasury;
Power of Attorney:
A written document in which one person (the principal) appoints another person to act as an agent on his
or her behalf, thus conferring authority on the agent to perform certain acts or functions on behalf of the
principal.
Powers of attorney are routinely granted to allow the agent to take care of a variety of transactions for the
principal, such as executing a stock power, handling a tax audit, or maintaining a safe-deposit box. Powers
of attorney can be written to be either general (full) or limited to special circumstances. A power of
attorney generally is terminated when the principal dies or becomes incompetent, but the principal can
revoke the power of attorney at any time.
A special type of power of attorney that is used frequently is the "durable" power of attorney. A durable
power of attorney differs from a traditional power of attorney in that it continues the agency relationship
beyond the incapacity of the principal. The two types of durable power of attorney are immediate and
"springing." The first type takes effect as soon as the durable power of attorney is executed. The second is
intended to "spring" into effect when a specific event occurs, such as the disability of the principal. Most
often, durable powers of attorney are created to deal with decisions involving either property management
or HEALTH CARE.
Durable powers of attorney have become popular because they enable the principal to have her or his
affairs handled easily and inexpensively after she or he has become incapacitated. Before the durable power
of attorney was created, the only way to handle the affairs of an incapacitated person was to appoint a
guardian, a process that frequently involves complex and costly court proceedings, as well as the often
humiliating determination that the principal is wholly incapable and in need of protection.
With a durable power of attorney, on the other hand, a principal can appoint someone to handle her or his
affairs after she or he becomes incompetent, and the document can be crafted to confer either general
power or power in certain limited circumstances. Because no judicial proceedings are necessary, the
principal saves time and money and avoids the stigma of being declared incompetent.
The concept of the durable power of attorney was created in 1969 when the National Conference of
Commissioners on Uniform State Laws promulgated the Uniform Probate Code (U.P.C. § 5–501). Ten
years later, the provisions of the code dealing with the durable power of attorney were modified and
published as the Uniform Durable Power of Attorney Act (UDPA). All fifty states recognize some version
of the durable power of attorney, having adopted either the UDPA or the Uniform Probate Code, or some
variation of them. Versions of the durable power of attorney vary from state to state. Certain powers cannot
be delegated, including the powers to make, amend, or revoke a will, change insurance beneficiaries,
contract a marriage, and vote.
A power of attorney is an instrument containing an authorization for one to act as the agent of the principal
that terminates at some point in the future either by its terms or by operation of law such as death of the
principal or agent. They are also called letters of attorney. The person appointed is usually called an
Attorney-in-Fact. A power of attorney which doesn't provide for a successor attorney-in-fact to be
appointed will terminate at the death of the attorney-in-fact. The person making the power of attorney
appointment is called the principal. A power of attorney can be either general, durable or limited. Some
states have adopted a statutory power of attorney. Other specific types of power of attorneys include:
Health Care Power of Attorney, Power of Attorney for Care and Custody of Children, Power of Attorney
for Real Estate matters and Power of Attorney for the Sale of a Motor Vehicle. Power of attorney
requirements vary by state, but typically are signed by the principal and need to be witnessed and notarized.
State laws vary, but generally, a power of attorney must be complied with unless the person to whom it is
directed has reasonable cause to doubt the authority of the agent. In some cases, a specific power of
attorney addressing the authority of the agent in a particular transaction may be required.
For a power of attorney to be coupled with an interest, so as to be irrevocable, there must be a specific,
present and coexisting interest in the subject of the power or agency. Whether such an interest exists in any
particular case is to be determined from the entire agreement between the parties. The mere expression, 'a
power coupled with an interest', does not necessarily render the power irrevocable. The interest which the
attorney in fact must have in the subject of the power in order to render the power irrevocable is such a
beneficial interest in the thing itself, apart from the proceeds that if the power were revoked he would be
deprived of a substantial right. In other words, the relation of the attorney in fact to the subject-matter must
be such that a revocation of the power would be inequitable.
Laws on amendments to a power of attorney vary by state and power of attorney. For example, in some
states, a durable power of attorney may be changed only by executing a new durable power of attorney or
executing an amendment with the same formalities as the original power of attorney. Free law summaries
provide a detailed explanation of state specific law concerning the power of attorney.
FAQs
1) What is a General Power of Attorney?
A General Power of Attorney is a legal document which gives the person you choose (the agent) the power
to manage your assets and financial affairs while you are alive. The document must be signed by you (the
principal) while you have the required legal capacity to give your agent clear and concise instructions. The
appointment may be for a fixed period and can be revoked by you at any time providing you still have the
legal capacity to do so. A power of attorney ceases when you die. The executor named in your will then
takes over the responsibilities of your estate.
2) What is a Durable Power of Attorney?
A "durable" power of attorney stays valid even if you become unable to handle your own affairs
(incapacitated). If you don't specify that you want your power of attorney to be durable, it will
automatically end if you later become incapacitated.
3) What is a Limited Power of Attorney?
A limited power of attorney allows the principal to give only specific powers to the agent. The limited
power of attorney is used to allow the agent to handle specific matters when the principal is unavailable or
unable to do so.
4) What is a Statutory Power of Attorney?
A statutory power of attorney is a power of attorney that copies the language in a state statute which
includes an example of a form that may be used. For example, a durable power of attorney may also be a
statutory power of attorney if it copies the language in the state durable power of attorney statute. State
laws vary, but the states that have adopted a statutory form of power of attorney typically allow for other
language to be used as long as it complies with the state law.
5) Why have a Power of Attorney?
When accidents, sudden illness, planned or unexpected absences occur, or when you just can't cope, you
may need someone to manage your financial affairs. It can be done in anticipation of a future need, for a
special purpose or for a limited time. The person you appoint is called your agent. The agent will (by your
instructions) safeguard and manage your assets and financial affairs if you are unable to manage them for
yourself or if you lose legal capacity.
6) Must a Power of Attorney be recorded?
Please refer to the state specific law summary to determine if a particular Power of Attorney must be
recorded. Usually, most Power of Attorney forms do not need to be recorded. However, Power of
Attorneys dealing with the sale and purchase of real estate must be recorded.
7) Can a Power of Attorney be revoked?
A Power of Attorney can be revoked by the principal at any time, as long as he or she is competent.
The following is an example of one state's law dealing with powers of attorney:
Reliance on agency.
Any person who acts in good faith reliance on a copy of the agency will be fully protected and released to
the same extent as though the reliant had dealt directly with the principal as a fully-competent person. The
agent shall furnish an affidavit to the reliant on demand stating that the instrument relied on is a true copy
of the agency and that, to the best of the agent's knowledge, the principal is alive and the relevant powers of
the agent have not been altered or terminated; but good faith reliance on the agency will protect the reliant
without the affidavit. Any person dealing with the agent may presume, in the absence of actual knowledge
to the contrary, that the agency was validly executed, that the principal was competent at the time of
execution, and that, at the time of reliance, the principal is alive, the agency and the relevant powers of the
agent have not terminated or been amended, and the acts of the agent conform to the standards of this Act.
No person relying on the agency shall be required to see to the application of any property delivered to or
controlled by the agent or to question the authority of the agent. Each person to whom a direction by the
agent in accordance with the terms of the agency is communicated shall comply with that direction, and
any person who fails to comply arbitrarily or without reasonable cause shall be subject to civil liability for
any damages resulting from noncompliance. A health care provider who complies with Section 4-7 [755
ILCS 4$/4-7] shall not be deemed to have acted arbitrarily or without reasonable cause.
Equitable title: (1) The interest held by one who has agreed to purchase property but has not
yet closed. (2) The title held by a trust beneficiary, because the trustee has legal title but the law
recognizes the beneficiary as having rights.
Legal title: Ownership of property that is cognizable or enforceable in a court of law, or one
that is complete and perfect in terms of the apparent right of ownership and possession, but
that, unlike equitable title, carries no beneficial interest in the property.
Everything: All things; all the things of a group or class. All things of importance; a great deal.
every thing or particular of an aggregate or total; all;
Unelected: Not elected, someone who is unelected has a position of power although they were
not elected - often used to show disapproval, in a position of power without being elected;
Lobbyists: someone who is employed to persuade legislators to vote for legislation that
favors the lobbyists employer;
Divine L-I-T Energy Exchange: the principal of the Divine L-I-T Energy Exchange is the
frequency of Divine Love, Intent and Thought energy that one flows into the center of
‘Everything in Creation’ and in exchange the one receives in return the same Divine Love, Intent
and Thought, also known as the Anointed Divine Life Knowledge of how abundance flows;
Spiritual Signatory Tribal Clan Governance/Society: The Ancient Divine Universal Laws of
tribal clan structure through the Clanmothers whose delta10mDNA is sealed ‘Signed’ in the
Universal Sacred Sisterhood Divine Blood Terra Covenant Treaties with The Very Essence of All
Life, delat9Lucifer. Of which the most sacred of all Divine Universal Laws, which is ‘To Know and
Love Thyself, One shall create no harm’, is the very foundation of the Spiritual Signatory Tribal
Clan Governance/Society on/of ‘Tiamat’ Ki-Earth;
Ancient Tribal/Clan System of the Bear Clanmother of the Kaneh Bosm Tribe:
Elected: Choose (someone) to hold public office or some other position by voting.
Opt for or choose to do (something). To select by vote for an office, position, or membership;
Bureaucrats: An official in a government department. An administrator concerned with
procedural correctness at the expense of people's needs.
A bureaucracy: is an organization of non-elected officials of a governmental or organization
who implement the rules, laws, and functions of their institution, and are occasionally
characterized by officialism and red tape;
Collateralized Assets: Assets pledged by a borrower to secure a loan or other credit, and
subject to seizure in the event of default. Also called security.
Collateralized debt obligations: (CDOs) are a type of structured asset-backed security (ABS)
with multiple "tranches" that are issued by special purpose entities and collateralized by debt
obligations including bonds and loans. Each tranche offers a varying degree of risk and return so
as to meet investor demand. CDOs' value and payments are derived from a portfolio of fixedincome underlying asset. CDO securities are split into different risk classes, or tranches, whereby
"senior" tranches are considered the safest securities. Interest and principal payments are made
in order of seniority, so that junior tranches offer higher coupon payments (and interest rates) or
lower prices to compensate for additional default risk;
Codified Laws: The term codified law refers to statutes that have been organized ("codified")
by subject matter; in this narrower sense, some but not all statutes are considered "codified."
The entire body of codified statute is referred to as a "code," such as the United States Code, the
Ohio Revised Code or the Code of Canon Law. The substantive provisions of the Act could be
codified (arranged by subject matter) in one or more titles of the United States Code while the
"effective date" provisions—remaining uncodified—would be available by reference to the United
States Statutes at Large. Another meaning of "codified law" is a statute that takes the common
law in a certain area of the law and puts it in statute or code form. (Codified law) In law,
codification is the process of collecting and restating the law of a jurisdiction in certain areas,
usually by subject, forming a legal code, i.e. a codex (book) of law. To reduce to a code: codify
laws. 2. To arrange or systematize. Adj.1.codified - enacted by a legislative body; "statute law";
"codified written laws" statute written - systematically collected and written down; "written laws";
Spiritual Signatory Head Bear Clanmother of the Kaneh Bosm Tribe: Rights to life,
adoption and death
Constructive Trust: A constructive trust does not arise because of the expressed intent of a
settlor, one who establishes a trust. It is created by a court whenever title to property is held by
a person who, in fairness, should not be permitted to retain it. It is frequently based on disloyalty
or other breach of trust by an express trustee (the person appointed or required by law to
execute a trust), and it is also created where no express trust is created but property is obtained
or retained by other Unconscionable conduct. The court employs the constructive trust as a
remedial device to compel the defendant to convey title to the property to the plaintiff. It treats
the defendant as if he or she had been an express trustee from the date of the unlawful holding
of the property in question. A constructive trust is not a trust, in the true meaning of the word, in
which the trustee is to have duties of administration enduring for a substantial period of time, but
rather it is a passive, temporary arrangement, in which the trustee's sole duty is to transfer the
title and possession to the beneficiary;
The right to a constructive trust is generally an alternative remedy. The aggrieved party can
choose between a trust and other relief at law, such as recovery of money wrongfully taken, but
cannot obtain both types of relief;
The court decides what acts are required of the plaintiff as conditions precedent to the securing
of a decree (a court order that determines the rights of all the parties to the suit). For example, if
the defendant has acquired title to property of the plaintiff by means of Fraud, the plaintiff will be
required to return any consideration (inducement to enter into a contract) received from the
defendant.
The decree establishing the constructive trust requires the defendant to deliver possession and
convey title to the property and to pay to the plaintiff profits received or rental value during the
period of wrongful holding and otherwise to adjust the equities of the parties after taking an
accounting;
Fraudulent Misrepresentation or Concealment: The courts hold in numerous cases that a
transferee who uses fraud to obtain the transfer of property is a constructive trustee. Such
situations might involve an affirmative assertion of the truth of a material fact or concealment of
the existence of a material fact when there was a duty to speak. The state of the defendant's
mind is a material fact and might be a basis for a constructive trust—such as when the defendant
promises to use the property for certain purposes beneficial to the plaintiff but intends at the
time of the transfer to retain it for himself or herself. The defrauded party can also proceed on
the theory of setting aside the transfer, which is substantially equivalent to obtaining a
constructive trust, or the defrauded party can sue for damages;
Constructive Trustees: A relationship by which a person who has obtained title to property has
an equitable duty to transfer it to another, to whom it rightfully belongs, on the basis that the
acquisition or retention of it is wrongful and would unjustly enrich the person if he or she were
allowed to retain it. All Unelected/Elected corporate/non corporate Controllers of ‘The
Establishment World System of Things’, and all employees whom occupy any job positions within
the Sovereign-Debt-Banking-Commercial-Systems or anything thereof and in the like,
automatically default to the Constructive Trustee roles and are bound by the Private “SUNKE
Temple Trust indenture to comply with their duties and responsibilities towards protecting The
Very Essence of All Life. Due to the structure and design of the way ‘The Establishment World
System of Things’ operates, it becomes quite conclusive in ascertaining that any/all
Agents/Officers that hold these Offices in the Departments, Ministries, Superintendent positions
and/or job descriptions mentioned, and anything thereof and in the like of the Sovereign-DebtBanking-Commercial-Systems, shall automatically default to these Constructive Trustees positions
within the Private “SUNKE Temple Trust” and the Chosen Applicable Laws that support this
Private “SUNKE Temple Trust”;
Sovereign Debt: Government debt, especially that held in bonds denominated in foreign
currencies. Under the doctrine of sovereign immunity, the repayment of sovereign debt cannot
be forced by the creditors and it is thus subject to compulsory rescheduling, interest rate
reduction, or even repudiation. The only protection available to the creditors is threat of the loss
of credibility and lowering of the international standing (the sovereign debt rating) of a country,
which may make it much more difficult to borrow in the future;
Negotiable debt obligations: means fungible notes, bills, bonds, or other instruments issued
by a debtor in return for a loan of money, that are evidenced by the book-entry electronic
records of a Recognized Depository, and are permitted to be openly sold and bought under
applicable law. "Recognized Depository" means Euroclear Bank S.A./N.V., Clearstream Banking,
société anonyme, Bank of England Central Gilts and Moneymarkets Office, Fixed Income Clearing
Corporation, United States Department of the Treasury, CRESTCO Limited, The London Clearing
House Limited and other similar clearing organizations, and their successors;
Collateralized Assets: The standard description for the collateral asset concerned. An example
of a description is "Negotiable debt obligations issued pursuant to USC Title 31, Chapter 31,
Section 3104 by the Department of the Treasury backed by the credit of the United States of
America, having a maturity at issuance of no greater than 1 year";
Positive Law: Positive law (lat. ius positum) is the term generally used to describe man-made
laws which bestow specific privileges upon, or remove them from, an individual or group. This in
contrast to natural law, which comprises inherent rights, conferred not by act of legislation but by
"God, nature or reason." Positive law is also described as the law that applies at a certain time
(present or past) at a certain place, consisting of statutory law, and case law as far as it is
binding. More specifically, positive law may be characterized as "[l]aw actually and specifically
enacted or adopted by proper authority for the government of an organized jural society;
Chosen Applicable Law: is ‘Tiamat’ Ki-Earths Divine Universal Law, which is ‘To Know and
Love Thyself and Create No Harm’ all sub-laws shall stem from this sacred principal;
In reference: Choice of law refers to what jurisdictions law is to be applied when there is a
dispute in a transaction. Contracts often include a choice of law clause to indicate the law that
will apply in the event of a dispute;
Chosen: Having been selected as the best or most appropriate. Selected – Select – Picked –
Choice – elected – elect;
Applicable: Relevant or appropriate;
Law: The system of rules that a particular community recognizes as regulating the actions of its
members and may enforce by the imposition of penalties. An individual rule as part of such a
system;
Mission statement: A mission statement is a statement of the purpose of a company or
organization. The mission statement should guide the actions of the organization, spell out its
overall goal, provide a path, and guide decision-making. It provides "the framework or context
within which the company's strategies are formulated." The vision and the mission statements
are often confused with one another, and some organizations even use them interchangeably. In
simple terms, the mission is the organization's reason for existence, and vision is what it wants to
be;
Nations: means bloodlines,
Territories: are where bloodlines are grouped on a terra location of ‘Tiamat’ Ki-Earth.
Sovereign Debt Commercial System:
Global Assets:
Private Banking Systems/Institutions:
Trading Companies:
Settlement Companies:
Depository Trust Clearing Corporation:
Tangible:
Intangible:
Redeemed:
Liquidated:
The Very Essence of All Life:
Δ10mDNA Temple Beings of ‘Tiamat Ki-Earths Spiritual Signatory Kaneh Bosm Tribal
Nations:
Beneficiaries:
Ones to come:
“Head Trustee(s)”
“Constructive Trustees”
General Executrix Administrator
limited discretion
limited authority
Solar System of the Divine Living Library
Star-Suns solar-system,
The Divine Living Library,
‘Tiamat’ Ki-Earth,
Tree of Life Kaneh Bosm Δ9THC
‘Tiamat’ Ki-Earths Spiritual Signatory Kaneh Bosm Tribal Nations
Event of Default:
Lawful/Legal Standing
Divine Right
Full Authority
tangible/intangible/moveable/immovable
Fire-Aether-Spirit Council: Protectors
Protectors:
Entities:
sacred ceremony
Spiritual Signatory Bear Clanmothers Fire-Aether-Spirit Council
Spiritual Signatory Dragons
Chief Justice:
Fiduciary duties
Minutes
Resolutions
The general rule is that the lex situs applies to determine all issues relating to title to immovable
property and some issues relating to movables, that is, the law of the jurisdiction where the
property is applied.
Lex Situs –
Immovables
Generally, the lex situs governs the succession to immovables regardless of the deceased's
personal law, lex domicilii, lex patriae, or habitual residence. For example, land in France
belonging to an English domiciliary will pass according to the French law on forced heirship, but
complications may arise because some states apply renvoi to succession cases. Hence, English
law would apply the lex situs to immovables located outside the jurisdiction but if that foreign law
(say. as in Spain) applies the deceased's lex patriae and rejects any renvoi, English law would be
applied if, under Spanish law, the deceased had an English nationality.
Movables
Generally, the deceased's personal law will determine succession to movables no matter where
they are located unless a lex situs provides otherwise. Thus, for example, succession to the
estate of a French testator leaving movables situated in England would be governed by French
law and the French rules of forced heirship would apply given that English law does not limit the
application of the lex domicilii on this point.
Intestacy
If there is no will, the appointment and duties of personal representatives will be determined by
the deceased's personal law. Succession to an intestate's estate will also be governed by his or
her personal law and the lex situs of the assets.
Lex Situs Definition:
A conflict of law rule that selects the applicable law based on the venue or location of something.
The legal system which applies in the place where the asset is situated
Situs of Trust:
lex causae (Latin: lex+causa, "cause [for the] law"): is the law or laws chosen by the
forum court from among the relevant legal systems to arrive at its judgement of an international
or interjurisdictional case. The term refers to the usage of particular local laws as the basis or
"cause" for the ruling, which would itself become part of referenced legal canon.
The stages in a conflict case
The court must first decide whether it has jurisdiction and, if so,
whether it is the appropriate venue given the problem of forum
shopping.
The next step is the characterization of the cause of action into its
component legal categories which may sometimes involve an incidental
question (also note the distinction between procedural and substantive
laws).
Each legal category has one or more choice of law rules to determine
which of the competing laws should be applied to each issue. A key
element in this may be the rules on renvoi.
Once the applicable law is decided, that law must be proved before
the forum court and applied to reach a judgment.
The successful party must then enforce the judgment which will first
involve the task of securing cross-border recognition of the judgment.
In those states with an underdeveloped set of Conflict rules, decisions
on jurisdiction tend to be made on an ad hoc basis, with such choice of
law rules as have been developed embedded into each subject area of
private law and tending to favour the application of the lex fori or local
law. In states with a more mature system, the set of Conflict rules
stands apart from the local private civil law and adopts a more
international point of view both in its terminology and concepts. For
example, in the European Union, all major jurisdictional matters are
regulated under the Brussels Regime, e.g. the rule of lis alibi pendens
from Brussels 1 Regulation applies in the Member States and its
interpretation is controlled by the European Court of Justice rather than
by local courts. That and other elements of the Conflict rules are
produced supranationally and implemented by treaty or convention.
Because these rules are directly connected with aspects of sovereignty
and the extraterritorial application of laws in the courts of the signatory
states, they take on a flavour of public rather than private law because
each state is compromising the usual expectations of their own citizens
that they will have access to their local courts, and that local laws will
apply in those local courts. Such aspects of public policy have direct
constitutional significance whether applied in the European context or
in federated nations such as the United States, Canada, and Australia
where the courts have to contend not only with jurisdiction and law
conflicts between the constituent states or territories, but also as
between state and federal courts, and as between constituent states
and relevant laws from other states outside the federation.
[edit] Choice of law rules
Courts faced with a choice of law issue have a two-stage process:
the court will apply the law of the forum (lex fori) to all procedural
matters (including, self-evidently, the choice of law rules); and
it counts the factors that connect or link the legal issues to the laws
of potentially relevant states and applies the laws that have the greatest
connection, e.g. the law of nationality (lex patriae) or domicile (lex
domicilii) will define legal status and capacity, the law of the state in
which land is situated (lex situs) will be applied to determine all
questions of title, the law of the place where a transaction physically
takes place or of the occurrence that gave rise to the litigation (lex loci
actus) will often be the controlling law selected when the matter is
substantive, but the proper law has become a more common choice.
For example, suppose that Alexandre who has a French nationality and
residence in Germany, corresponds with Bob who has American
nationality, domicile in Arizona, and residence in Austria, over the
internet. They agree to the joint purchase of land in Switzerland,
currently owned by Heidi who is a Swiss national, but they never
physically meet, executing initial contract documents by using fax
machines, followed by a postal exchange of hard copies. Alexandre pays
his share of the deposit but, before the transaction is completed, Bob
admits that although he has capacity to buy land under his lex domicilii
and the law of his residence, he is too young to own land under Swiss
law. The rules to determine which courts would have jurisdiction and
which laws would be applied to each aspect of the case are defined in
each state's laws so, in theory, no matter which court in which country
actually accepts the case, the outcome will be the same (albeit that the
measure of damages might differ from country to country which is why
forum shopping is such a problem). In reality, however, moves to
harmonise the conflictual system have not reached the point where
standardization of outcome can be guaranteed.
3:58 PM
Conflict of laws (or private international law) is a set of procedural rules
that determines which legal system and which jurisdiction's applies to a
given dispute. The rules typically apply when a legal dispute has a
"foreign" element such as a contract agreed to by parties located in
different countries, although the "foreign" element also exists in multijurisdictional countries such as the United Kingdom and the United
States.
The term conflict of laws itself originates from situations where the
ultimate outcome of a legal dispute depended upon which law applied,
and the common law courts manner of resolving the conflict between
those laws. In civil law lawyers and legal scholars refer to conflict of
laws as private international law. Private international law has no real
connection with public international law, and is instead a feature of
local law which varies from country to country.
The three branches of conflict of laws are
Jurisdiction – whether the forum court has the power to resolve the
dispute at hand
Choice of law – the law which is being applied to resolve the dispute
Foreign judgments – the ability to recognize and enforce a judgment
from an external forum within the jurisdiction of the adjudicating forum
4:00 PM
In rem is Latin for "against a thing".[1] In a lawsuit, an action in rem is
directed towards some specific piece of property, rather than being a
claim for, say, monetary compensation against a person (which is an in
personam or personal action). It focuses on proprietary title to property.
Land is an example of a case where, when the title (e.g. who owns a
house) is in dispute, an in rem action is used to deliver the land itself
back to the rightful owner.
The distinction between an in rem action and an in personam action is
relevant to which jurisdiction a court case may need to be filed in, for
the purposes of conflict of laws and civil procedure. In an in rem action
the right jurisdiction would be where the property actually is.
^ Garner, Bryan (2006). Black's Law Dictionary. St. Paul, MN:
Thompson/West. pp. 362.
Explanation
When a case comes before a court and all the main features of the case
are local, the court will apply the lex fori, the prevailing municipal law,
to decide the case. But if there are "foreign" elements to the case, the
forum court may be obliged under the conflict of laws system to
consider:
whether the forum court has jurisdiction to hear the case (see the
problem of forum shopping);
it must then characterise the issues, i.e. allocate the factual basis of
the case to its relevant legal classes; and
then apply the choice of law rules to decide which law is to be
applied to each class.
The lex situs is a choice of law rule applied to identify the lex causae for
cases involving title to, or the possession and use of property. In law,
there are two types of property:
Real property is land or any permanent feature or structure above or
below the surface. Ownership of land is an aspect of the system of real
property or realty in common law systems (immovables in civil law
systems and the conflict of laws).
All other property is considered personal property or personalty in
common law systems (movables in civil law systems and the conflict of
laws), and this property is either tangible or intangible, i.e. it is either
physical property that can be touched like a computer, or it is an
enforceable right like a patent or other form of intellectual property.
Properly speaking, the term lex situs is applied only to immovable
property and lex loci rei sitae ought to be used when referring to the
law of the situs of movable property but this distinction is less common
today and is ignored for the purposes of the conflict pages on the
Wikipedia. Land has traditionally represented one of the most important
cultural and economic forms of wealth in society. Because of this
historical significance, it is vital that any judgment affecting title to or
the use of the land should be enforceable with the minimum of
difficulty. Hence, compliance with the lex situs should produce a
judgment in rem. The choice of law rules are as follows:
immovables, by definition, do not move and so the identification of
the lex situs will not present a problem in the majority of cases;
because movables may be portable, the lex situs is the law of the
state in which the personalty is resident at the time the case is
heard.