CYIL Vol. 7, 2016
CYIL 7 ȍ2016Ȏ THE CONCEPTUAL ROLE OF HABITUAL RESIDENCE Three types of obligations stemmed from the connection between a person and the urban community: municipal burdens ( munera ) , jurisdiction ( forum originis, domicilii ) and the particular law of a community as a quality of the persons belonging to it (lex originis , domicili ) . 19 Each category of obligations generated different legal effects. Each category of obligations – munera , forum and lex – and their legal consequences – equally shared an intimate connection. Especially the two last effects of attachment to an urban territory (jurisdiction and territorial law) were to be regarded only as different sides of the totality of the local law. 20 As a general rule on jurisdiction every lawsuit was to be brought in the forum of the defendant. An individual could have been sued in the town of his citizenship by origo or in the town of his domicile. Thus a person could have been subject to jurisdiction in two different towns at the same time. Forum originis was distinguished from forum domicilii . In practice a plaintiff preferred the forum domicilii as the defendant was more easily reached there. Attachment of a person to an urban community established a third category of obligations. Right of citizenship in a particular town determined the positive law applicable to a person. 21 This legal system had a territorial character. An individual was obliged to obey this territorial law and was subject to its jurisdiction. As a result of that, origo and domicilium instituted unity of forum and lex . The personal life of a citizen was ruled by sole jurisdiction and sole law based on the origo and domicilium . 3. Interaction of national and international law: relationship between the concepts of nationality, domicile and habitual residence The Private Law Codex for the Canton of Zürich (Privatrechtliches Gesetzbuch für den Kanton Zürich) of 1853 mirrored the doctrine of the historical law school of which Savigny was the coryphaeus . 22 Based on its introductory provision the codex applied to the legal relationship of all persons living ( wohnen) or residing ( aufhalten ) in a canton. Either citizens or foreigners had a different form of relationship towards the place, i.e. canton. The canton was also called, among other things, a place ( die Stätte) or estate ( der Stand) . The citizens had the most intimate bond with the canton, whereas the foreigners missed such a connection. The law strictly differentiated citizens of the canton and foreigners ( Kantonsfremde). The foreigners
19 Ibid ., p. 70. 20 Ibid ., p. 70. 21 Ibid ., p. 73. 22 ZWEIGERT, Konrad and KÖTZ, Hein. Einführung in die Rechts-vergleichung aud dem Gebiete des Privatrechts. 3., neubearbeitere Auflage, Tübingen: J. C. B. Mohr, 1996, p. 167.
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