The Previous Question in Private International Law: A Comprehensive Analysis
The Previous Question in Private International Law
Introduction: The concept of the “previous question” is a recent development in private international law, emerging in the 1930s within the German legal doctrine. It is a relatively rare occurrence, often arising in situations where a prior legal issue must be resolved before the main issue can be addressed. This is particularly common in cases involving succession, where the validity of a claim to inheritance may depend on the resolution of a prior question, such as the establishment of a legal relationship or the validity of a contract.
The previous question arises when two distinct relationships governed by private international law (DIPRO) intersect and become intertwined. In such cases, it is impossible to resolve one issue without addressing the other, as they overlap. This occurs when two a priori different DIPRO relationships, with distinct characteristics, become interconnected, and the resolution of the main issue hinges on the resolution of the previous question. The court’s role in this scenario is to ensure public order. When applying a foreign rule is impossible, the international standard should be applied.
The previous question interrupts legal reasoning, encompassing both the identification of the conflict rule and the application of substantive law. It is as if another DIPRO relationship intersects the main one, with one being prior and the other being principal. It represents missing information that must be obtained by resolving the prior issue before analyzing the main relationship in private international law.
Characterization
- The first step is to identify the main legal issue and, during its analysis, recognize the existence of a second legal issue, the previous question. Each issue involves different legal rights and specific connections. The key link between the two is that the resolution of the main issue will likely differ from the resolution of the previous question. This connection typically arises when a party involved in the main relationship is also involved in the previous question. This connection is based on the presence of at least one common agent, creating a coincidence of agents.
Example 1: A common scenario where the previous question arises is in cases involving succession.
Imagine a French citizen who moved to Brazil, established a professional career, married a Brazilian woman, had two children, and acquired real estate. Upon his death in Brazil, a DIPRO issue arises regarding the inheritance of his foreign assets in Brazil. The Brazilian judiciary, recognizing this as a matter of succession, applies the conflict rule governing succession (Article 10 of the Brazilian Law of Introduction to the Civil Code – LICC). This rule directs the application of the law of the deceased’s domicile to determine the succession, regardless of the nature or location of the property.
Article 10. The succession on death or absence obeys the law of the country where the deceased domiciled or the missing person, whatever the nature and location of property.
The process involves opening an inventory, identifying the surviving spouse, listing assets, and identifying the heirs. However, a Dutch citizen claims to be the deceased Frenchman’s daughter, presenting a claim based on French law. This claim raises a previous question: is the Dutch citizen actually the deceased’s daughter? Before distributing the assets to the heirs, it is necessary to determine the Dutch citizen’s status as a child and heir. This determination is crucial because being a child does not automatically make someone an heir. The resolution of this previous question will determine whether the Dutch citizen is entitled to a share of the inheritance.
Example 2: A few weeks before his death, the French citizen entered into negotiations to purchase a property in Lebanon. He continued these negotiations after returning to Brazil, and three days before his death, he sent an email to the property owner confirming his intention to purchase the property. The question arises: is this proposed contract valid? Before including the property in the inventory, it is necessary to determine the validity of the purchase agreement. This is a previous question because the inventory cannot be finalized without confirming the acquisition of the property. It is unclear whether the email constitutes a valid agreement, and therefore, it is unknown whether the property should be included in the deceased’s assets.
Therefore, resolving the issue of succession (the French citizen’s estate) requires addressing the previous questions of the Dutch citizen’s parentage and the validity of the property purchase agreement.
Methods
- Application of the Same Right: This method involves applying the same law governing the main issue to the previous question. This assumes a dependency between the previous question and the main issue, where the previous question is raised in relation to and in consideration of the main issue. Therefore, the law governing the main issue would be responsible for resolving the previous question. When a previous question arises, the law applied to the main issue should also be applied to all prior issues that may arise in the case. In the examples above, Brazilian law would apply to all relationships, creating a dependency between the previous question and the main issue, with the same law governing both.
- Own Rating: This method involves independently analyzing each relationship governed by private international law. This approach emphasizes the independence of private international law relationships.
What options should be applied: When faced with a previous question, it is essential to consider the legal system that will govern the prior issue and determine whether to apply the same right or perform an independent qualification (where a distinction is made between principal and accessory relationships, with independent DIPRO relationships).
- When in doubt, each question should be qualified individually. This is because the previous question could arise even without the main issue. The main issue only takes precedence because it was presented first. To respect the integrity of each relationship, independent qualification is preferred. This is supported by legal doctrine.
- First, it should be determined whether the legal system favors one of the two options. If there is no specific provision, which is usually the case, independent qualification should be chosen, independent of the main issue. From a technical standpoint, this is the more appropriate approach.
Conclusion
In many jurisdictions, including Brazil, the previous question is not adequately addressed. This issue, or its resolution, is often left to recent international conventions. This lack of attention and the limited binding nature of conventions create a challenging situation in Brazil.
The only specific provision in Brazil addressing the previous question is the American Convention on General Standards of DIP – Montevideo – 1969, to which Brazil is a signatory. (Article 8 -“Previous, preliminary or incidental damages that may exist before a primary relationship, not resolve is necessarily agree with the legal system that addresses the primary relationship).“
However, this article is problematic because it does not provide a clear solution, leaving it to each signatory state to address the issue as they see fit.
The LICC does not explicitly mention the previous question or the two methods for addressing it. However, its resolution is implicit in the following provisions:
Article 10. The succession on death or absence obeys the law of the country where the deceased domiciled or missing, whatever the nature and location of property.
ยง 2 The law of the domicile of the heir or legatee regulates the ability to succeed.
Brazil adopts its own rating. Get a great example of inadmissibility and analyzes the qualification method itself.