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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.