2 Q.B.

19

QUEEN'S BENCH DIVISION.

I n t h e result, t h e plaintiffs succeed in this action, and are

1958
entitled to the declaration asked for. With regard to the claim BIRTLEY AND
for an injunction, it was argued by Mr. Gardiner on the authority
DISTRICT
of Davies v . Davies 28 t h a t the terms of the award are too vague to SOCIETY LTD.
be enforced by injunction. B u t t h e facts of t h a t case were very
>
different, and, in m y view, the words of t h e award are sufficiently AND DISTRICT
specific to be enforceable by injunction.
INDUSTRIAL
Accordingly, the claim for an injunction will also be allowed, SOOIETY LTD.
as prayed, and I shall direct an inquiry as to damages.
( No - 2 )Judgment

for the

plaintiffs.

Solicitors: Herbert Reeves & Go. for William Mark Pybus &
Sons, Newcastle-upon-Tyne;
Sharpe, Pritchard & Co. for Watson,
Burton, Booth & Robinson,
Newcastle-upon-Tyne.
C. J . E .
28 (1887) 36 Ch.D. 359.

P H E A N T Z E S v. A E G E N T I .

1960
Feb. 23, 24,

[1958 P . No. 2526.]

March'i.

Conflict of LawsJurisdictionBight
depending on statusEnforceability outside country of domicileBight in personamBight to
dowry under Greek legislation.
Conflict of LawsJurisdictionBight depending on discretion of foreign
courtBight to dowry under Greek law.
Conflict of LawsJurisdictionBemedy peculiar to foreign lawBight
to order condemning father to enter into dowry contract with son-inlaw.

C.J.

A daughter, a Greek national, who had recently married in

England, claimed a declaration that under Greek law she was
entitled on her marriage to be provided by her father, also a Greek
national, with a dowry. Both father and daughter were residing in
England and the father, inter alia, denied the fact, on which
the daughter relied, that he was at any material time domiciled in
Greece. By Greek law a father was obliged to constitute on behalf
of his daughter entering on marriage a dowry in accordance with
his fortune, the number of the children, and his social position and
that of the son-in-law. The dowry was property granted to the
husband and was constituted by a contract entered into with
the husband by notarial deed: it might consist of present or future
property, which had to be specified, and could be land or movables.
Should the father fail to provide a dowry the daughter had a cause

20

QUEEN'S BENCH DIVISION.

I960

~~I
0_
ARGENTI.

[1960]

of action in the Greek courts to obtain an order condemning him to

conclude a dowry contract with her husband: if abroad, the father
could be condemned to enter into the contract before the Greek
consul or a foreign notary public. In such proceedings the
Greek court would decide what in all the circumstances was the
appropriate amount of the dowry and might specify the assets to
be handed over. No dowry was constituted until the father had
entered into the contract so ordered, and if he did not, the only
courses open to the daughter were to secure his imprisonment or
bring an action for damages.
The father objected that the statement of claim disclosed no
cause of action. On the trial of the preliminary issue whether,
assuming that the father was at all material times domiciled in
Greece, the daughter was entitled to the relief claimed:
Held, that a father's obligation to constitute a dowry under
Greek law and the reciprocal right of a daughter to have a dowry
constituted, were of a nature which the English courts would
recognise, and that the daughter's right, notwithstanding that it
was a right in personam, and that it did not come within the
definite categories of foreign rights which the courts had enforced,
was one which, in principle, could be enforced in the English courts
(post, pp. 33, 34).
Loucks v. Standard Oil Go. of New York (1918) 224 N.Y. 99
applied.
In re Macartney [1921] 1 Ch. 522 and Be Brimont v. Penniman
(1873) 10 Blatchford's Circuit Court Reports 436 distinguished.
But that (i), since the daughter's right was not a right to the
payment of a sum of money but to an order condemning the father
to enter into a contract with the son-in-law which required inquiries
and decisions involving a large measure of discretion as to matters
which were essentially matters for the domestic courts and their
discretion, it would be wrong for our courts to claim jurisdiction
(post, p. 35).
Kornatzki v. Oppenheimer [1937] 4 All E.R. 133 applied:
and (ii) Although,a claim would not be defeated merely because
English remedies were greater or less than those in the foreign
country, if the machinery by way of remedies was so different as to
make the right sought to be enforced a different right, it would not
be enforced in this country; that there was no power in the court
to give relief consistent with the daughter's claim, for even if the
court granted a declaration and embarked on the necessary inquiry
as to the extent of the dowry, it could do no more than order pay
ment of the amount found to be appropriate to the daughter, which
would be to enforce a right which she did not possess under Greek
law, and, therefore, English law did not provide a cause of action
and relief appropriate to the enforcement of her claim. The
daughter, accordingly, was not entitled to the relief sought (post,
pp. 35, 36).
Baschet v. London
distinguished.

Illustrated

Standard

[1900] 1 Ch. 73

2 Q.B.

21

QUEEN'S BENCH DIVISION.

Weidman v. Weidman (1931) 174 N.E. 206 and Howard Under1960

taking Go. Ltd. v. Fidelity Life Association (1933) 59 S.W. (2d) ~
746 applied.

ARGENTI.
ACTION.

The plaintiff, Sybil Phrantzes, a Greek national, who was

married in this country on December 4, 1957, brought an action
against the defendant, her father, Philip Pandely Argenti, also a
Greek national, claiming a declaration that she was entitled by
virtue of article 1495 of the Greek Civil Code to be provided by
him with a dowry as set out in that article, an account of the
defendant's property and (by amendments to the writ and state
ment of claim delivered on February 12, 1960) an inquiry as to
the amount of dowry properly payable by the defendant and such
further inquiry, judgment or order as might be required to give
effect to the declaration sought. Both parties were residing in
this country but the plaintiff alleged that the defendant was at all
material times domiciled in Greece, and that her rights in respect
of his property arising from the relationship existing between them
were governed by Greek law.
The defendant, inter alia, denied that he was at any material
time domiciled in Greece, and objected that the statement of
claim disclosed no cause of action. On April 16, 1959, Master
Lawrence ordered the trial of the preliminary issue whether, on
the assumption that the defendant was at all material times
domiciled in Greece, the plaintiff was entitled to the relief claimed
in the action.
The facts relating to Greek law sufficiently appear from the
headnote and are fully stated in the judgment.
Gilbert Beyfus Q.G. and R. I. Threlfall for the plaintiff.
English courts will entertain actions to protect and enforce foreign
proprietary rights arising out of status or relationship which accrue
to persons by reason of their domicile: see the first four principles
set out in the introduction to Dicey's Conflict of Laws, 7th ed.
(1958), pp. 9, 12 and 17. The preliminary issue assumes that
the defendant is domiciled in Greece, and, if it is relevant, the
plaintiff in fact is also domiciled in Greece; under Greek law
the defendant is under an obligation to constitute a dowry for the
plaintiff and the plaintiff is entitled to have a dowry constituted;
the plaintiff's right is a proprietary right; the obligation and the
right arise out of status, the right being acquired at birth, and,
therefore, this action to enforce that right is of a nature such as

22

QUEEN'S BENCH DIVISION.

i960
PHBANTZBS

"
'

[1960]

these courts will entertain. While it does not appear that an

action to enforce a foreign right of dowry has ever been brought
in this country before, the right belongs to the class of proprietary
or financial rights with which English law is familiar. Compare
the right, in this country, which a widow had to dower, a similar
financial right arising out of status: compare, also, rights arising
out of the concept of community of goods in France, and in the
State of California, which English courts have enforced: see
De Nicoh v. Curlier,1 In re Bettinson's Question2 and De Serre
V. Clarke.3 There are five exceptions to the rule that an English
court will enforce such a right: (1) Where there is a question of
the title or of trespass to real property situated abroad: British
South Africa Co. v. Companhia de Mogambique.* (2) Where
torts committed abroad are not tortious acts by the law of this
country: Phillips v. Eyre.5 (3) Where foreign penal or semipenal laws are involved: Worms v. De Valdor 6 and In re Selot's
Trust.7 (4) In the case of foreign revenue laws: In re Visser*;
Sydney Municipal Council v. Bull." (5) When to enforce the
right would be contrary to public policy. Since the plaintiff's
right does not fall into any of those categories, there is no reason
in principle why this action should not be entertained. The
observations of Cardozo J. in Loucks v. Standard Oil Co. of New
York 10 are adopted as part of the argument for the plaintiff. It
is, therefore, for the defendant to show why the right to which
the plaintiff is entitled under Greek law should not be enforced
here.
Eemedies are available to the plaintiff in English law. She
asks for a declaration and an inquiry into the defendant's property,
and goes on to ask for an order in the nature of an order for
specific performance: compare the power of the court to order
a settlement of a wife's property under section 24 of the Matri
monial Causes Act, 1950.
John Foster Q.C. and Mark Littman for the defendant. There
is no general rule that all proprietary rights arising out of status
will be enforced: it does not and cannot exist. There are many
such rights which are not enforced, e.g., a right acquired by virtue
of a divorce in a foreign country which is not the country of
i
2
510;
3

[1900] A.C. 21; 16 T.L.E. 101.

[1956] Ch. 67; [1955] 3 W.L.E.
[1955] 3 All E.E. 296.
(1874) L.E. 18 Eq. 587.
4
[1893] A.C. 602; 10 T.L.E. 7.
s (1870) L.E. 6 Q.B. 1.

(1880) 49 L.J.Ch. 261.

' [1902] 1 Ch. 488.
8
[1928] Ch. 877; 44 T.L.E. 692.
[1909] 1 K.B. 7; 25 T.L.E. 6.
10
(1918) 224 N.Y. 99.

2 Q.B.

QUEEN'S BENCH DIVISION.

28

domicile; and there are also rights which the court will recognise
i960
but not enforce. But the plaintiff's right under Greek law is a PHBANTZBS
right in personam and not a proprietary right. Nor is it in the
*>.
AROPNTI
same category as the widow's right of dower: see the definition
of " dower " in Stroud's Judicial Dictionary, 3rd ed. (1952),
vol. 1, p. 879.
The following nine propositions are advanced for the defen
dant: (1) The plaintiff's claim is based on a cause of action
unknown to and not recognised in English law, and, therefore,
it will not be enforced in an English court: In re Macartney.11
(2) English law, the law of the forum, does not provide a form
of action appropriate for the enforcement of the foreign right of
the plaintiff, namely, the right to obtain an order against the
defendant to enter into a contract of dowry with her husband,
and, therefore, this action cannot be maintained: see Beale's
Conflict of Laws (1935), vol. 3, para. 608, p. 1631, Weidman
v. Weidman12 and Howard Undertaking Co. Ltd. v. Fidelity
Life Association.13 (3) Under Greek law the plaintiff's right is
to a dowry, the amount of which is determined according to the
social position of the husband and of the father and according to
the father's fortune, and to which there are the defences under
Greek law of, inter alia, a marriage without consent or a fault
justifying disinheritance or that the daughter has sufficient private
fortune. Furthermore, the couri; may select certain property to
be included in the contract and may specify it against the will of
the defendant. All those are matters for the local law; they are
within the jurisdiction of the Greek court and are not justiciable
here. The questions of fact raised are of a kind which an English
court will say are peculiarly for local inquiry. The concept of
dowry, unlike succession, marriage or bankruptcy, which are
universal, is particular. [Keference was also made to Mandell
v. Fogg.11]
(4) If the plaintiff's right is one which the court will recognise,
it will not be enforced, because it is a right to obtain an order
for which there is no machinery here. An English court will not
order a defendant to enter into a contract with, and to transfer
property to, a person who may not be a party to the action.
(5) The claim for a declaration or for an inquiry is not founded
on any legal right; the defendant is not liable to account, and the
" [1921] 1 Ch. 522.
12 (1931) 174 N.B. 206.
(1933) 59 S.W. (2d) 746.

" (1903) 94 Am.State E . 667; 66

N.E. 198.

24

QUEEN'S BENCH DIVISION.

I960

PHBANTZBS

"

ARGENTI

'

[1960]

relief claimed does not include the foreign legal right claimed,
namely, the right to an order, that the defendant enter into a
contract of dowry with the husband. (6) While the status of
father and daughter is recognised by English law, the incident
attaching to the status of the father to constitute a dowry for the
daughter will not be recognised as being an incident unknown to
English law and, if recognised, will not be enforced. (7) Any
remedies which can be granted by an English court to enforce
the right possessed by the plaintiff under Greek law would alter
the nature of her Greek right and would for that reason not be
granted by an English court. (8) There is no authority that a
foreign statutory right in personam can be directly enforced in
England independently of any contract or tort. In De Nicols v.
Curlier l s the title to property was based on the marriage con
tract, and that case, therefore, was of a quite different nature.
[Eeference was also made to In re De Nicols.16] (9) The plain
tiff's claim is contrary to the established policy of this country,
since it would involve a recognition of the permanent right of
a child to require her father or mother to enter into a dowry
contract with her husband.
More particularly, reliance is placed on In re Macartney.17
Section 9 of the Administration of Justice Act, 1920, in setting
out the circumstances in which a judgment obtained in the
British Dominions may be ordered to be registered, embodied
the common law on this matter; see also section 3 (1) of the
Arbitration (Foreign Awards) Act, 1930, and section 4 of the
Foreign Judgments (Eeciprocal Enforcement) Act, 1933, and
compare the views expressed in Dicey's Conflict of Laws, 7th ed.,
pp. 1005 and 803, 3rd ed. (1922), p. 452 and note (p), and 5th ed.
(1932), p. 470 and note (n). Those statutory provisions do indicate
that at common law it was a defence to the enforcement of a
foreign judgment or award that the cause of action was unknown
to English law; if so, a fortiori, the right giving rise to the cause
of action cannot be enforced. At its lowest, the fact that it is
debatable whether such a judgment or award can be enforced
shows that the right itself cannot be enforced. The plaintiff's
cause of action arises under article 1495 of the Greek Civil Code
and, even if it were a claim for money simpliciter, would not
come within any cause of action in English law. An action in
personam under a foreign statute will not be maintained unless
is [1900] A.C. 21.
[1900] 2 Ch. 410; 16 T.L.E. 461.

16

l7

[1921] 1 Ch. 522.

2 Q.B.

QUEEN'S BENCH DIVISION.

25

the right giving rise to it is within one of the recognised categories

I960
which these courts have enforced.
PHBANTZBS
[LORD PARKER C.J. Assuming that it is a proprietary right,
*
why in principle will it not be enforced merely because it is
unknown to our law?]
English private international law is empirical. Judicial deci
sions have established certain categories of rights arising out of
status which are recognised and enforced. [Eeference was also
made to Dicey's Conflict of Laws, 7th ed., pp. 9, 13, 223, 225,
226; Cheshire's Private International Law, 5th ed. (1957), p. 32;
Baindail v. Baindaills; De Brimont v. Penniman,1* and Louclcs
v. Standard Oil Co. of New York.20] If the proposition for the
plaintiff is right, it would involve the formulation of a broad
theory covering such matters as affiliation, alimony, the right to a
dowry, not only, as here, by a female child, but also, if it existed
in some other country, of a male child, the recovery of mainten
ance by legitimate or illegitimate children, or by parents from
their children, and would have serious repercussions in English
law. English courts derive their principles from analogy and
legal reasoning and ethical and social considerations; the court,
therefore, must look at the foreign right and see whether, on the
facts proved, it can be enforced under the English rules of conflict
of laws. The question is: Is it the kind of right these courts will
enforce? The only foreign statutory rights, which will be enforced
are those coming within the headings of infants, parental autho
rity, lunacy, marriage, bankruptcy and succession; but see the
statement in Dicey's Conflict of Laws, 7th ed., p. 403, that the
court has no jurisdiction to enforce the duty under a foreign
statute of parents to maintain an adult child or of a child to
maintain his parents. To enforce this right would be at variance
with the established principles of English private international
law.
The inclusion of specific property is part of the substantive
foreign law, and it is contrary to the policy of our law to order
the defendant to conclude a contract with a third party in which
specific property is included. No comparison can be drawn with
orders relating to the settlement of a wife's property under section
24 of the Matrimonial Causes Act, 1950. Apart from statute, there
is no power to make such an order: In re Leigh.21 Moreover,
[1946] P. 122; 62 T.L.E. 263;
[1946] 1 All B.E. 342.
(1873) 10 Blatchford's Circuit
Court Reports 436.

20

224 N.Y. 99.

(1888) 40 Ch.D. 290; 5 T.L.B.
138 (C.A.).
21

26

QUEEN'S BENCH DIVISION.

I960

PHBANTZES

v.
'

[1960]

the machinery of a settlement is quite unlike the Greek order

^ a * the defendant enter into a contract with his son-in-law;
nor is the dotal contract itself like a settlement. Further, the
order involves an inquiry which the court has no power to make:
it would necessarily involve the examination of the defendant as
to his fortune, but he is not an accounting party. {Eeference
was also made to Bullen and Leake's Precedents of Pleadings,
11th ed. (1959), p. 70.] The Greek procedure in the inquiry as
to the father's fortune is quite different from English procedure
on an inquiry, and the inquiry itself is not one known to our
courts; it would not be as to damages, or as to the transfer of
property, but as to the extent of a foreign right, requiring the
exercise of the discretion of the Greek court and the application
of principles of Greek law: it is, therefore, outside the scope of
the authority of this court.
[LORD PARKER C.J. referred to Kornatzki v.

Oppenheimer.22]

That case supports the submission for the defendant.

The only jurisdiction of this court is to enforce the plaintiff's
actual right under Greek law, but there is no machinery for, and
the court would not make, the ultimate order, which would have
to be an order in' the form of a mandatory injunction, requiring
the defendant to enter into a dotal contract to enforce that right.
The declaration sought, therefore, is not founded on any substan
tive relief and should.not be made: Guaranty Trust Company of
New York v. Hannay & Co.,23 and see Dysart (Earl) v. Hammerton & Co.,2i in particular per Cozens-Hardy M.E., 2S approved
in this respect in Hammerton & Co. v. Dysart (Earl)26; see also
Nixon v. Attorney-General.27
Beyfus Q.C. in reply. The argument for the defendant ignores
the fact that this is an action by a Greek national domiciled in
Greece against a Greek national domiciled in Greece to enforce
an obligation falling on him under his own national law. In re
Macartney 2S is not against the plaintiff. There was there no
question of a foreign domicile. Nor was there a foreign domicile
in De Brimont v. Penniman2* where the decision was based on
public policy and it was emphasised that the foreign law was a
local law. The obligation in this case may arise under a local
foreign law, but the defendant here is domiciled in the country of
" [1937]
" [1915]
" [1914]
(C.A.).
" [1914]

4 All E . E . 133.
2 K.B. 536 (C.A.).
1 Ch. 822; 30 T.L.B. 379
1 Ch. 822, 833, 834.

[ i g i 6 ] i A . C . 57; 31 T.L.E. 592.

[1930] 1 Ch. 566; 46 T.L.E. 246.
[1921] 1 Ch. 522.
2 10 Blatchford's Circuit Court
Reports 436.

2 Q.B.

27

QUEEN'S BENCH DIVISION.

that law and it is irrelevant that he is resident here. Baindail

I960
v. Baindail30 is a strong example of the way in which English PHBANXZES
courts will enforce a personal law; and see Wolff's Private Inter
ABQBNTI
national Law, 2nd ed. (1950), pp. 389, 390, where dowry is
specifically instanced [para. 367]. [Eeference was also made
to De Nicols v. Curlier31 and In re Bettinson's Question.32]
It is not accepted that In re Macartney 33 was rightly decided
on the second ground or that it is authority that a foreign right
will not be enforced if it is unknown to English law. The basis
of that decision was not that the action would not lie because it
was unknown to English law, but that it could not be maintained
for reasons of public policy or of a similar nature; the exclu
sions provided for by section 9 of the Administration of Justice
Act, 1920, are on those grounds: see, generally, Wolff's Private
International Law, 2nd ed., p. 266, and Dicey's Conflict of Laws,
7th ed., pp. 1004, 1005. It cannot be suggested that it would
be contrary to public policy in that sense to enforce a foreign right
to dowry in the circumstances of this case. I t is not a question
whether a right falls within a particular rule, but the general
principle is that, apart from public policy, a right proved to have
been duly acquired under a foreign system of law will prima facie
be protected in the English courts, and it is for the person seeking
to dispute the right to show that it falls into one of the recognised
exceptions. [Eeference was also made to Schmitthoff's The
English Conflict of Laws, 3rd ed. (1954), p. 54.] The plaintiff's
right is a proprietary right or, at the lowest, in the nature of a
proprietary right. I t is in the same class as a right of succession,
for under Greek law a dowry is part of a daughter's inheritance
in advance and, therefore, should follow the law of the domicile:
De Nicols v. Curlier,34, in particular per Lord Halsbury L.C., 35
Selkrig v. Davies 36 and Coldingham Parish Council v. Smith.37
It is no defence to say that the court could not order the
defendant to execute the contract of dowry. When an English
court entertains a foreign cause of action it will give its own
remedy although the foreign court might not have given that
remedy: see Baschet v. London Illustrated Standard3S and
Dicey's Conflict of Laws, 7th ed., p. 1089- The.plaintiff, there
fore, is entitled to such relief as the court can give, and the right
30

[1946] P. 122.
35
[1900] A.C. 21.
"
32
[1956] Ch. 67.
37
33 [1921] 1 Ch. 522.
as
3* [1900] A.C. 21.
=>
2PA3Y <r f?

Ibid. 27.
(1814) 2 Eose 97, 291 (H.L.).
[1918] 2 K.B. 90.
[1900] 1 Ch. 73.
r '

<rr, ':,

_^^

28

QUEEN'S BENCH DIVISION.

I960

PHBANTZES

[1960]

to damages is not excluded. But a Greek dotal contract is more

* n * n e n a * u r e of a conveyance than a contract and there is ample
jurisdiction and machinery to grant the relief for which she asks:

A ROPNTT

'

compare section 47 of the Supreme Court of Judicature (Consoli

dation) Act, 1925, which recognises the inherent jurisdiction of the
court, and Seton's Judgments and Orders, 7th ed. (1912), vol. 1,
pp. 416 et seq. The court is not necessarily being asked to specify
the property to be included in the dowry, and there is jurisdiction
to order a defendant to pay money to a third person not a party
to the action: Ascherson v. Tredegar Dry Dock and Wharf Co.
Ltd.3" It is conceded that a declaration, unless followed by
substantive relief, is discretionary, but it should not be assumed
that the defendant would not comply with any declaration made.
Under sections 23 and 24 of the Matrimonial Causes Act, 1950,
the court is well used to considering the social position of persons
in whose favour an order is being made; this court can go into
all the relevant matters as well as the Greek court could; since
the defendant is resident in this country it might be in a better
position to do so than the Greek court.
Cur. adv. vult.
March 4. LORD PARKER C.J. read the following judgment:
The plaintiff is the daughter of the defendant. Both are nationals
of the Kingdom of Greece at present residing in this country.
The plaintiff on December 4, 1957, married in this country accord
ing to the rites and ceremonies of the Eastern Orthodox Greek
Church and thereupon, so it is alleged, the defendant under Greek
law became by virtue of his relationship to the plaintiff obliged to
provide a dowry for her. He has failed to do so and in these
proceedings she seeks to enforce that obligation, relying on the
fact, as it is alleged, that the defendant is domiciled in Greece.
By his defence the defendant alleges that he is not domiciled in
Greece and, in any event, contends that the statement of claim
discloses no cause of action and that the plaintiff is not entitled to
the relief claimed.
The matter comes before me on a preliminary issue ordered
by Master Lawrence on April 16, 1959, namely, " whether on the
" assumption that the defendant was at all material times
" domiciled in Greece the plaintiff is entitled to the relief
" claimed." By a further defence delivered by leave of the
master after that order the defendant alleged that in any event
a" [1909] 2 Ch. 401.

2 Q.B.

QUEEN'S BENCH DIVISION.

he had since the issue of the writ provided for the plaintiff under
a deed made under the laws of Liechtenstein, and that such
provision was under Greek law of a character and an extent

29
I960
p HBANTZE8

A ROFNTT

sufficient to discharge him from providing a dowry. In allowing

this further defence to be delivered the master made no alteration lord Parker
in the terms of the preliminary issue even though it was brought
to his attention. Accordingly, I ruled that the only matter with
which I would deal was the issue as ordered which arose under the
original pleadings.
The first question which arises is as to the position under
Greek law which is, of course, a question of fact. One Greek
lawyer was called on each side and while at one time there
appeared to be a complete divergence of opinion on certain points,
there was in the end little, if any, difference between them. I
find the position to be as follows:
For many centuries it has been the custom and, indeed, the
law in Greece for a father to provide a dowry for his daughter on
her marriage. The law was codified in 1940 and the Code came
into force in 1946. Under that Code the relations between parents
and children are governed by the law of the last common
nationality of the father and child, and failing this, by the law of
the nationality of the father at the time of the birth of the child
(see article 18). The father is obliged to constitute on behalf of his
daughter entering upon marriage a dowry in accordance with his
fortune, the number of his children and his social position, and in
accordance with the social position of the daughter's husband.
The only exceptions are: (1) if, in the light of his other obliga
tions, the father is not in a position to constitute a dowry without
endangering his own proper maintenance; (2) if and so long as
the daughter possesses a sufficient fortune of her own to constitute
a suitable dowry; (3) if the daughter, being a minor, marries
without the father's consent; (4) if the daughter has committed
such a " fault " as would justify disinheritance (see articles 1495
and 1497).
If the father is dead or not in a position to constitute a dowry
the obligation devolves upon the mother (article 1496). The
husband is the head of the family and decides on all matters
relating to the marital life (article 1387). He further bears the
burdens of the matrimony (article 1398).
The dowry is the property granted to the husband either by the
wife, if she is possessed of a sufficient fortune, or by the parent
on the wife's behalf, to lighten the burdens of matrimony. It is
constituted by a contract entered into with the husband, which

30

QUEEN'S BENCH DIVISION.

I960

PHBANTZES

*>

ABGENTI.
Lord

c!j?rker

[1960]

contract must be entered into by a notarial deed (articles 1406

l 1402), that is a deed prepared by and entered into before a
notary public who is a public servant, after which the assets
, .
..
,
. .
comprised in it are handed over.
^he subject of the dowry may either consist of present or of
future property, which must, however, be specified (article 1410).
It can consist of land or movables. As regards movables these will
become the property of the husband, unless the dowry contract
otherwise provides (article 1412). The husband can, with the con
sent of the wife, alienate that property (article 1416). On the other
hand, immovable property, unless the clowry contract otherwise
provides, becomes and remains the property of the wife, but the
husband will, during the marriage, have the management and
usufruct thereof (articles 1412 and 1414). The husband can only
alienate immovable property with the permission of the court
(article 1417). This permission will only be given in the case of
great need or where a profit will result. The produce of the sale
will then become the dowry.
A dowry may also include by assignment the usufruct to which
the father is entitled arising from property not in his ownership.
It may include usufruct arising for a lesser time than the
marriage. It may also include the right of habitation in particular
premises without paying rent. A daughter also has a right to
share in her father's estate. If she has had a dowry, that will be
taken into account in deciding the amount of her inheritance.
Should the father fail to comply with his obligation in regard
to the provision of a dowry, the daughter, and the daughter alone,
has a cause of action in the Greek courts to obtain an order
condemning her father to conclude a dowry contract with her
husband before a notary public who may or may not be named.
If the father is abroad he may be condemned to enter into the
contract before the Greek consul or a' foreign notary public. In
such proceedings the court will decide what in all the circum
stances indicated above is the appropriate amount of the dowry
and may specify the assets to be handed over. In these proceed
ings the husband may or may not intervene as he thinks fit. No
dowry is constituted until the father has entered into the dowry
contract so ordered. In the unlikely event of the father failing
to enter into a contract so ordered, the experts on Greek law
were of opinion that the only courses open were either to secure
his imprisonment or to bring an action for damages.
The only possible exception to the principle that no dowry is
constituted until the dowry contract has been entered into arises

an<

2 Q.B.

QUEEN'S BENCH DIVISION.

31

when the dowry or part of it is to consist of land and the husband

i960
has intervened in the proceedings. In such a case, if the father pHRANTZES
refuses to enter into the dowry contract it may be that the

husband could make a unilateral declaration of acceptance and

then register that in the Land Eegistry as a document of title.
Lord^Parker
That being the state of the Greek law, the contentions put
forward on behalf of the plaintiff can be simply stated as
follows: (1) That the issue to be determined assumes that the
' defendant is domiciled in Greece. (2) That by reason of the
relationship or status of the parties, there arose on the plaintiff's
birth or on her marriage an obligation under Greek law on the
defendant to constitute a dowry on her behalf. (3) That the right
to have such a dowry constituted is a proprietary right. (4) That
prima facie the courts of this country will entertain an action to
enforce proprietary rights arising out of status which accrue
according to the law of the father's domicile. (5) That the case
does not come within any of the well-known exceptions, e.g., as
being contrary to public policy, penal in character, etc. Granted
that no such action has ever been brought in this country before
there is nothing in principle, so it is said, to prevent our courts
from entertaining such an action.
Points (1) and (2) above cannot be controverted. Further, it
must be, I think, conceded that whether or not the father's
obligation to constitute a dowry and the reciprocal right of the
daughter to have one constituted on her behalf can be enforced in
this country, the obligation and the right are of such a nature as
these courts will recognise. But on all other points there is little,
if any, agreement.
In the first place, it is said on behalf of the defendant that
even if what is sought to be enforced here is a proprietary right,
which is denied, it will not be enforced unless it comes within
one or other of the definite rules enumerated by Dicey, e.g., in
regard to infants, marriage, succession or bankruptcy. To go
outside those rules would lay the way open to the enforcement
of a number of rights which it is said these courts have never
enforced. For example, the English courts will not enforce the
duty under a foreign system of law of a parent to maintain his
child or vice versa, cf. Dicey's Conflict of Laws, 7th ed. (1958),
p. 403. Again, in In re Macartney,1 the court was asked to
enforce the judgment of a Maltese court condemning the testator's
estate to provide maintenance for his illegitimate daughter.
i [1921] 1 Ch. 522.

32

QUEEN'S BENCH DIVISION.

1960

PHRANTZBB

*>
Lord

'
c^ r k e r

[1960]

Astbury J., while refusing to enforce the judgment on the ground

that the recognition of an illegitimate child's right under Maltese
law to be permanently maintained was contrary to public policy,
went on to hold that the action could not be entertained on the
ground that the judgment obtained was of such a character that
it would not have supported an action in England. In advancing
this second ground the judge followed the New York case of De
Brimont v. Penniman.2
In that case a French citizen had
married in France the daughter of two United States citizens.
The wife died, leaving a child. Under French law the father-in-law
and mother-in-law were bound to provide an allowance to the
father for the support of the child. The father obtained the judg
ment of a French court against them while they were in France,
requiring them to provide an annual allowance. On their return
to the United States of America the father sued them in the
American courts to recover arrears. Woodruff J. refused to
entertain the action. He held that the French law and the decree
made under it were local in their nature and operation, were
designed to guard against pauperism and were not of universal
acceptance like judgments founded upon contract or other recog
nised rights. He said 3 : " The decree in question proceeds upon
" the declaration of an obligation not in conformity with our laws,
" not known to the common law, and upon the continuance of the
" obligation itself after the relationship out of which it is deemed
" to have arisen has ceased by the death of the person through
" whom the affinity was traced." He went on to say 4 : " What" ever obligation or duty lies at the foundation of the claim . . .
" is the creature of positive statute, framed for the people of
" France, to regulate their domestic concerns, protect the public,
" a n d guard against pauperism and its evils. Statutes in some
" respects similar are found in England, and in most, if not all,
" of the States in this country. The duty of parents . . . to
" provide for the necessary support of those relatives, and prevent
" their becoming a charge to the public, is declared and enforced.
" Such regulations are local in their nature, and in their applica" tion, and so are the orders for their enforcement. . . . Orders
" of filiation are of a similar character. . . . The principle
" upon which foreign judgments receive any recognition in our
" courts, is one of comity. It does not require, but rather forbids
" it, when such a recognition works a direct violation of the policy
2

(1873) 10 Blatchford's Circuit

Court Keports 436.

Ibid. 440.
* Ibid. 440, 441.

Q.B.

QUEEN'S BENCH DIVISION.

33

"
"
"
"
"
"
"
"
"
"
"
"
"
"
"
"
"
"

of our laws, and does violence to what we deem the rights of

I960
our own citizens. The courts . . . will be slow to hold, that, "PHBANTZES~
whenever an American citizen shall visit France, and reside
e.
there temporarily, with his family, his son or his daughter, by
a rash or imprudent marriage, can cast upon the parents, Lord Parker
mother as well as father, the perpetual burthen of an annuity,
for the support of the wife or husband. So long as such
residence continues, no doubt, the parents must submit to the
laws of France. The orders of her courts may be enforced
against them, as those laws may prescribe; but, in a matter
of this kind, those laws must be executed there, and such
decrees can have, and ought to have, no extra-territorial
significance. They rest upon no principles of universal acceptation, like the obligation of contracts, or the protection of
generally recognised, private, personal rights. No disposition to
deal with foreign judgments, so as to promote the ends of
justice, demands that such decrees should be arbitrarily enforced
in our courts."
Some criticism has been made of the decision in In re
Macartney, cf. Wolff's Private International Law, 2nd ed. (1950),
pp. 266 and 26.7, in so far as the second ground of the decision is
concerned. Be that as it may, I think that the present case is
quite different from In re Macartney 5 and De Brimont v. Penniman.* There is no question here of the foreign law being a law
against pauperism. I t is, moreover, intended to have extra
territorial effect since the Greek courts will, as I have said,
condemn a father resident abroad to enter into a contract before
the Greek consul or a foreign notary public.
Indeed, if this were the only point in the case I would hold
that this was a right which could be enforced here. As Cardozo J.
said in Loucks v. Standard Oil Co. of New York 7 : " I f aid is to
" be withheld here, it must be because the cause of action in
" its nature offends our sense of justice or menaces the public
" welfare. . . . Our own scheme of legislation may be different.
" We may even have no legislation on the subject. That is not
" enough to show that public policy forbids us to enforce the
" foreign right. A right of action is property. If a foreign statute
" gives the right, the mere fact that we do not give a like right
" i s no reason for refusing to help the plaintiff in getting what
" belongs to him. We are not so provincial as to say that

[1921] 1 Ch. 522.

6
10 Blatchford's Circuit Court
Beports 436.
2 Q.B. 1960.

' (1918) 224 N.Y. 99, 110, 111.

34

QUEEN'S BENCH DIVISION.

I960

PHRANTZBS

*>

ARGENTI
Lord

'
C^ rker

[1960]

" every solution of a problem is wrong because we deal with it

" otherwise at home. Similarity of legislation has indeed this
'' importance: its presence shows beyond question that the
" foreign statute does not offend the local policy. But its absence
" does n o * P r o v e the contrary. It is not to be exalted into an
" indispensable condition. The misleading word ' comity ' has
" been responsible for much of the trouble. I t has been fertile in
" suggesting a discretion unregulated by general principles (Beale,
" Conflict of Laws, para. 71). The sovereign in its discretion
'' may refuse its aid to the foreign right. . . . From this it has
" been an easy step to the conclusion that a like freedom of
" choice has been confided to the courts. But that, of course, is a
" false view. . . . The courts are not free to refuse to enforce
" a foreign right at the pleasure of the judges, to suit the
" individual notion of expediency or fairness. They do not close
" their doors unless help would violate some fundamental prin" ciple of justice, some prevalent conception of good morals, some
"deep-rooted tradition of the common weal."
The next point taken on behalf of the defence is that the
right under Greek law is not a proprietary right at all. It is, so
it is said, only a right in personam; a right to get the court to
condemn the father to enter into a dowry contract. This, as it
seems to me, must be the correct position. True it is connected
with succession, being on account of the daughter's inheritance,
but the action is an action in personam. However, in my judg
ment, it matters not what label is given to the right. It is, I
think, a right which could be enforced here if, for instance, it
was a right to payment of a fixed sum of money or a definite
proportion of the father's fortune simpliciter.
It is, however, at this point that the plaintiff's difficulties
occur. The right is not the right to the payment of a sum of
money. It is the right to an order condemning the father to
instruct a notary public to draw up a dowry contract in accord
ance with the directions of the court, and to enter into that
contract with the son-in-law who may not even be a party to the
proceedings. Before the order can be made the court must inquire
into the extent of the father's fortune and that of his daughter.
The court must further consider the respective social position of
the father and son-in-law, that is their positions in the Greek or
other community where each is living, and decide what is the
appropriate amount of dowry. It must decide, if the point is
raised, whether the daughter has committed a fault within
article 1497. It will often have to decide in all the circumstances

Q.B.

QUEEN'S BENCH DIVISION.

35

what the dowry is to consist of, how much of it shall be land, how
I960
much movables, whether any part of it is to consist of the PHR ANTZES
usufruct from property and, if so, for how long it is to be granted,
"
AROPNTT

whether the use of a house free of rent is to be provided, and, in

addition, what are to be the terms as to ownership of the dowry
whether movable or land (article 1412). Specimen contracts were
put in evidence. All these inquiries and decisions are essentially
matters for the domestic courts, and matters largely for the
discretion of those courts and not our courts. It is true that in
Kornatzki v. Oppenheimer 8 Farwell J. held that he was able to
evaluate the sum which a German court in all the circumstances
of the case would award as payable in discharge of a pre-war debt
based on a provision of the German Civil Code, which provided
that the debtor was bound to effect the performance of his
obligations according to the requirements of good faith, ordinary
usage being taken into consideration. He came to the conclusion
in that case that the evaluation was really a question of fact which
could be determined by the court in England, and that it was not
a matter of discretion at all. He, however, clearly took the view
that if discretion had entered into the matter it would have been
a matter for the German courts alone, and that he would not
have had any jurisdiction in the matter. Here it seems to me
that the considerations which I have enumerated above, taken
as a whole, must involve a very large measure of discretion, and
that it would be quite wrong for our courts to claim jurisdiction in
the matter.
The matter does not end there since, in my judgment, the lex
fori, English law, does not provide a cause of action and relief
appropriate to the enforcement of the foreign right, namely, a
right to obtain an order condemning someone to enter into a
contract in a particular form with a person not even a party to
the proceedings. I t is true, of course, that a plaintiff seeking to
enforce a foreign right here can demand only those remedies
recognised by English law, and that the claim will not be defeated
merely because those remedies are greater or less than those in
the courts of the foreign country: cf. Dicey's Conflict of Laws,
7th ed., p. 1089, and Baschet v. London Illustrated Standard.'
But the remedies available must harmonise with the right accord
ing to its nature and extent as fixed by the foreign law: cf.
Cheshire, Private International Law, 5th ed. (1957), pp. 667 and
668. Put another way, if the machinery by way of remedies here
[1937] 4 All E . E . 133.

[1900] 1 Ch. 73.

Lord

c^

rker

36

QUEEN'S BENCH DIVISION.

I960

PHRANTZES
ABOENTI

[1960]

is so different from that in Greece as to make the right sought to

be enforced a different right, that right would not, in my judgment,
k e e n f o r c e ( l m this country. This matter has been considered in
the United States of America. Thus the Eestatement of the Law

Lord Parker

CJ.

of Conflict of Laws [American Law Institute, 1934], para. 608,

states: " If no form of action is provided by the law of a state
" for the enforcement of a particular foreign right, no action
" to enforce that right can be maintained in the state. Comment:
" a. The form of action is a matter of procedure. A court will
" not invent a new form of action, unknown to the law of the
" forum, in order to give a remedy on a foreign cause of action."
Again, in Beale's Treatise on the Conflict of Laws (1935),
vol. 3, para. 608, p. 1631, it is stated: " If the law of the forum
" does not provide a form of action appropriate for the enforce" ment of the foreign right the action may not be maintained."
See also Weidman v. Weidman10 and Howard Undertaking Co.
v. Fidelity Life Association.11
In the present case, even if the court granted a declaration
and embarked on the necessary inquiry as to the extent of the
dowry, it could do no more than order payment of the amount
found to be appropriate and payment thereof to the plaintiff.
That, however, would be to enforce a right which the plaintiff does
not possess under Greek law. True, the courts here have power
to order a deed to be entered into by a husband to secure payment
of maintenance or to order a settlement of a wife's property, but
that is a jurisdiction given by statute: cf. sections 23 and 24 of
the Matrimonial Causes Act, 1950. Reference was also made to
section 47 of the Supreme Court of Judicature (Consolidation)
Act, 1925, dealing with the execution of instruments which a
person fails when directed to enter into. But that section does
not itself give any right to direct a person to enter into a contract,
and I know of no power in the court, inherent or otherwise, which
would enable the court to give relief which was consistent with
the plaintiff's right under Greek law.
For these reasons I have come to the conclusion that the
answer to the question raised in the preliminary issue is " No."
Since it is admitted that the claim fails if, contrary to the
' (1931) 174 N.E. 206; 274 Mas8.
118.

(1933) 59 S.W. (2d) 746.

2 Q.B.

QUEEN'S BENCH DIVISION.

37

assumption in the issue, the defendant is not domiciled in Greece,

it follows that the claim must be dismissed.
Judgment for the defendant with costs.

i960
PHEANTZES

v.
_

Solicitors: Trower, Still & Keeling; Stoneham & Sons.

J. F. L.

LEGGE AND OTHERS V. MATTHEWS AND ANOTHER.

C. A.

[ P l a i n t No. P P . 262.]

i960
Feb. 9, 10,
11, 12.

Landlord and TenantBent

restrictionDecontrolSubleasePart
of Lord Goddard,
premises lawfully subletDecontrol
of whole premisesWhether
sub- {JDJJIUI'L J J
tenant of part forming separate dwelling-house
protected against
head landlordIncrease
of Bent and Mortgage Interest
(Bestrictions)
Act, 1920 (10 & 11 Geo. 5, c. 17), s. 15 (3)Housing Bepairs and
Bents Act, 1954 ( 2 * 3 Eliz. 2, c. 53), s. 41Bent Act, 1957 ( 5 * 6
Eliz. 2, c. 25), ss. 11, 27 (2), Sch. 4, paras. 1, 2.
I n 1953 the t e n a n t of premises within the protection of the R e n t
Acts lawfully sublet to the second defendant the ground floor,
comprising a separate dwelling-house for t h e purposes of those Acts.
After A p r i l , 1957, the t e n a n t remained in possession of the premises
as a s t a t u t o r y t e n a n t u n t i l , i n J u l y , 1957, the premises as a whole
were decontrolled by the R e n t Act, 1957. The rateable value of the
ground floor was, however, below the limits of the decontrolling
provision. I n October, 1958, an order for possession was made
against the t e n a n t , but the operation of the order was suspended
for six months. The landlords also sought to recover possession
against the s u b t e n a n t :
Held, (1) t h a t section 41 of the Housing R e p a i r s and R e n t s Act,
1954 1 (which applied not only where the superior letting was con
t r a c t u a l but also where it h a d become s t a t u t o r y and covered all cases
where the superior letting was of a dwelling-house which a t the
moment was not controlled) applied so t h a t the R e n t Acts operated
1
Housing Eepairs and Kents Act,
1954, s. 4 1 : " W h e r e a dwelling" house to which the Act of 1920
" applies (hereinafter referred to as
" ' the sub-let part ') forms part of
" premises, not being such a dwelling" house, which have been let as a
" whole on a superior letting, then
" from the coming to an end of the
" superior letting the operation of the

" Eent Acts in relation to the Bub" l e t part shall be the same as if in
" lieu of the superior letting there had
" been separate lettings of the sub-let
" part and the remainder of the pre" mises, for the like purposes as under
" the Buperior letting, and at' rents
" equal to the just proportion of the
" rent under the superior letting."