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Lionel has kindly given us more from the decision of Moses J. It relates to the central questions - what type of claim was it and which law should apply?

Moses J rejected the *attractive and simple* submission of counsel for FRG that German law should not apply because the claim was one in tort. Now that more flesh is appearing on the decision we can take a better view of the reasoning. I am now more worried than puzzled. We seem to have a clear picture that the judge viewed the nature of the action as an action in rem, since it involved the *assertion* of title. As I have indicated before, it seems to me incorrect to categorise this type of claim as an assertion of title. That a claim in tort should be recategorised as something else is odd. That the application of the limitation periods should then be based on this recategorisation is worrying.

It was clearly the view of the judge that the German limitation period should be excluded (the irony of course is that there was, in my opinion, no need to consider applying it in the first place). Once it was in some means of throwing it back out had to be found. In conflicts cases this is natural - escape mechanisms are searched for by judges to reach the right result, and if they cannot be found public policy is reluctantly relied upon.

However, there is a basic point of taxonomy in play. If tort actions can be reclassified as property actions what is the point of having different branches of the law. Cutting the legal system down and searching for common principles is fine (Danie Visser's lumpers and splitters comes to mind). Nevertheless, some basic structure has to be maintained. In Scots law we have some of the same difficulties. The action for restitution of one's property (*it is mine and I demand it back*) is a property action, but can also be categorised by the response - the restitutionary response. However, as Peter Birks has shown, differentiating between the source of the right or obligation and the response is of fundamental importance. Am I alone in thinking that these have been slightly muddled up in Gotha City?

Scott Dickson

Intrant of the Faculty of Advocates
Tutor in International Private Law, The University of Edinburgh