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There are several examples involving the use of adaptation involving the real statute (generally corresponding to the lex situs), a topic that we have already dealt with in previous articles in this column, especially this one.

 

There is an example that deserves to be cited in this article because it involves a case arising from a conflict of qualifications: the case of the vacant inheritance of an Englishman involving property in Portugal1.

 

Suppose an Englishman, without heirs, resident in England, died. He leaves properties in Portugal. This is, therefore, a case of vacant inheritance (bona vacantia).

 

On the one hand, English law treats the issue of the fate of vacant inheritance as a real statute, and not as a succession statute. English succession rules have nothing to do with this matter. It is its norms of property law that establish the right to escheat (the right to confiscate), of feudal origin, which was maintained by the Administration of Estates Act, 1925, for real estate. According to this rule, vacant inheritance reverts to the Crown as a type of expropriation.

 

On the other hand, Portuguese law deals with vacant inheritance as a rule of succession status, and not as a real status. The Law of Things rules in Portugal do not offer a solution. Its succession rules establish the reversion of vacant inheritance to the State2.

 

This is a vacuum of applicable material standards  in German law) or a negative conflict of qualifications.

 

Under the traditional rules of conflict of norms, there would be no law to be applied. There would be a regulatory vacuum. The lex  is English law, which - in its succession rules - is silent regarding the fate of vacant inheritance by qualifying this matter as royal status. The rei  law (which is Portugal's law) is also silent, as Portugal classifies the issue of the fate of the vacant inheritance as succession status.

 

From this perspective, in the case above, the properties located in Portugal would become res nullius, which is an unacceptable result as it goes against the spirit of both legal systems involved. For this reason, the case uses the  adaptation technique to rule out this unacceptable result.

 

The doctrine points to two paths for this adaptation ssensu3, all leading to the same result: the appropriation of the vacant inheritance by the Portuguese State.

 

The first is to make the adaptation affect the connection element, changing it. The idea would be to apply the lex rei  to the succession issue of vacant inheritance. Thus, Portuguese law (lex rei ) would be applied to revert vacant properties to the Portuguese State. This solution seems more appropriate to us due to what we call subsidiarity in the intervention in the material content of the norms.

 

The second is to adapt the material norms, creating, in the lex rei , the rule that the Portuguese State appropriates vacant inheritances. This promotes the integration of Portuguese law.

 

It should be noted that, within the scope of the European Union, this negative conflict of qualification in relation to vacant inheritance no longer exists: art. 33 of the European Succession Regulation4 regulated the issue, granting the member state where the property is located the right to appropriation5.

 

Having exposed these examples, the question arises: what are the parameters for  adaptation?

 

The doctrine does not seem clear to us. It refers, in practice, to the judge's equitable judgment in the specific case, adapting the conflicting rules and the content of the material norms6. It adopts, as a guideline, the search for a fair legal situation in the specific case. For this reason, the topic is usually approached by doctrine through empirical examples with answers to each specific case.

 

In short,  adaptation is a technique that will correct an unacceptable or impossible result caused by traditional conflicting rules of private international law and will operate by changing, in the specific case, these conflicting rules or the content of the conflicting rules themselves.

 

Examples such as the one discussed in this article can be useful to illuminate transnational succession problems involving properties located in Brazil.

source: https://www.migalhas.com.br/coluna/migalhas-de-direito-privado-estrangeiro/400362/caso-da-heranca-vaga-envolvendo-imovel-situado-em-portugal