Obrázky stránek
PDF
ePub

from the opinion of Mr. Justice Gray in The Montana, it is clearly implied that if the parties manifest an intention to be bound by some law other than that of the place of making, such intention would be effective.

The intention of the parties in respect to the law under which they contract may be expressly declared, or it may be inferred from circumstances. The case of Hamlyn & Co. v. Talisker Distillery must be considered as a case falling under the former class. It is true the contract does not contain an express provision that it shall be governed by the law of England, but the clause of reference referred so directly to London, and the usages of the London Corn Exchange, that, by construction, it was equivalent to an express incorporation of the English law. It was so treated by the judges. Lord Watson said:

"If they had stipulated that all disputes arising out of the contract were to be decided in the Court of Session, I should have been of opinion that they had in view the principles of Scotch law, and meant that their mutual stipulations should be construed according to these principles. And, to my mind, their selection from the membership of a commercial body in London of a conventional tribunal which is to act ' in the usual way,' or, in other words, in the manner which is customary in London, indicates, not less conclusively, that, in agreeing to such an arbitration, they were contracting with reference to the law of England." (pp. 212, 213.)

In the absence of any declaration of intention in the contract, whether express or derivable from it by fair construction, the court is obliged to consider all the circumstances from which a mutual intention in regard to the governing law may be inferred. These circumstances will now be reviewed.

I. If the contract or clause in question is valid by the law of one country, and invalid by the law of the other country, that is a circumstance of great cogency in favor of applying the law by which the agreement will be upheld. The reason is, that as the parties have entered into a transaction intended to have legal consequences, this intention implies a submission to that law which will enforce the agreement. In Hamlyn & Co. v. Talisker Distillery, the clause of reference was valid by the law of England, and invalid by the law of Scotland. This fact was considered by the judges. Lord Herschell said:

"As I have already pointed out, the contract with reference to arbitration would have been absolutely null and void if it were to be governed

by the law of Scotland. That cannot have been the intention of the parties; it is not reasonable to attribute that intention to them if the contract may be otherwise construed; and for the reasons which I have given, I see no difficulty whatever in construing the language used as an indication that the contract, or that term of it, was to be governed and regulated by the law of England." (pp. 208, 209.)

Lord Ashbourne said:

"This interpretation gives due and full effect to every portion of the contract; whereas the arbitration clause becomes mere waste paper if it is held that the parties were contracting on the basis of the application of the law of Scotland, which would at once refuse to acknowledge the full efficacy of a clause so framed. It is more reasonable to hold that the parties contracted with the common intention of giving effect to every clause, rather than of mutilating or destroying one of the most important provisions." (p. 215.)

Without asserting that this circumstance is conclusive, it should always be considered, and has been referred to in several important decisions1 as a circumstance of great weight.

2. The reason for the importance of the place of making a contract has been thus explained:

"The general rule is that the law of the country where a contract is made governs as to the nature, the obligation, and the interpretation of it. The parties to a contract are either the subjects of the power there ruling, or as temporary residents owe it a temporary allegiance in either case equally they must be understood to submit to the law there prevailing and to agree to its action upon their contract. It is, of course, immaterial that such agreement is not expressed in terms; it is equally an agreement in fact, presumed de jure, and a foreign court, interpreting or enforcing it upon any contrary rule, defeats the intention of the parties, as well as neglects to observe the recognized comity of nations." 2

1 Re Missouri Steamship Co., 42 Ch. D. 321, 337, 341; Peninsular & Oriental S. S. Co. v. Shand, 3 Moo. P. C. N. S. 272, 291; Pritchard v. Norton, 106 U. S. 124, 137; Bell v. Packard, 69 Maine, 105, 111; Wharton, Confl. (2d ed.), § 429. See also The Montana, 129 U. S. 397, 460, 461.

Savigny (Guthrie's transl., 2d ed., § 372, p. 223), says it has been asserted that the local law which will best support the juridical act in question must always be applied. For this proposition, to which Savigny does not assent, the only authority cited is Eichhorn, Deutsches Privatrecht, § 37, notes f, g. The passage in Eichhorn refers to cases where the locus contractûs is doubtful, as in the case of contracts concluded by letter, and rests upon D. 45. 1. 80: Quotiens in stipulationibus ambigua oratio est, commodissimum est id accipi, quo res, qua de agitur, in tuto sit. (ULPIAN.)

2 Turner, L. J., in Peninsular & Oriental Steamship Co. v. Shand, 3 Moo. P. C. N. S. 272, 290.

In that part of the passage here quoted from Lord Justice Turner which refers to the principle of allegiance, whether permanent or temporary, an implication is suggested that the law of the place where the contract is made is imposed upon the parties and governs their agreement without reference to their intention. This implication, however, is destroyed by the remainder of the passage, which clearly refers the application of the law of the place of contracting to the will of the parties themselves. If, then, the law of the place of making applies by virtue of an "agreement in fact," such agreement must be based upon mutual intention. The presumption in favor of the law of the place of making, called a presumption de jure, is conceded to be rebuttable, and can therefore be controlled by evidence of a different intention. Being merely evidence, it also follows that the place of making may be of different degrees of importance in different cases. For example, in

a case like Jacobs v. Crédit Lyonnais,1 where two English mercantile houses, carrying on business in England, made a contract in London, to be performed partly in Algiers, where the law of France prevails, the place of making the contract is a fact of great importance, and was so treated by the court. On the other hand, in the case of a contract concluded by correspondence, or by telegraph or cable, or even by an agent, the place where the contract is made has very little, if any, tendency to show a mutual intention to submit to the law of that place. Furthermore it is often difficult to decide where a contract inter absentes was in fact concluded.2

Finally, the place where a given contract was concluded may be determined differently by different systems of law. Such a difference may be a question of practical importance in a case where there is a conflict between the common law and the law of a coun

1 12 Q. B. D. 589.

2 It cannot be expected that this difficult subject, having a literature of its own, will be discussed here. Usually the question of the place where a contract is completed is not separated from that of the time when it is completed. Professor Langdell's discussion of the latter question is too well known to the readers of this REVIEW to need citation. See Holmes, The Common Law, 305; 7 Am. Law Rev. 433. The point is a subject of controversy among the continental jurists. Windscheid, Lehrbuch (7th ed.), II. § 306, and note 10; Savigny (Guthrie's transl., 2d ed.), § 371, pp. 214-216; Bar, Priv. Int. Law (2d ed.), §§ 270, 271. Also § 128, note E, p. 289. See Laurent, Droit Civil International, vii. Nos. 447 et seq. In the case of a unilateral contract, the place where the consideration is furnished would seem to be the place of making. Milliken v. Pratt, 125 Mass. 374. The nature of the consideration, however, may be such as to require acts to be performed in several different jurisdictions.

try governed by the Roman or continental system.1 Ir. such a case the place where the contract was made can be of no assistance whatever. To decide by either of the competing systems of law where the contract was made, and then to infer from the place where it was made what law should govern it, would be mere reasoning in a circle.

3. It will not be necessary to dwell long upon the place of performance. Its importance has always been placed upon the true principle, namely, that it has a tendency to show the intention of the parties. Thus Willes, J., in Lloyd v. Guibert, says the law of the place of making the contract ought to prevail, in the absence of circumstances indicating a different intention, "as, for instance, that the contract is to be entirely performed elsewhere."2 Upon this ground the place of performance has often been allowed to override the presumption arising from the place of making, but like the place of making, its value as evidence of intention varies. greatly in different cases. In some contracts the place of performance is expressly fixed; in others it is left to construction and inference from extrinsic facts; in still others, as in contracts of carriage, the performance may be partly in several different jurisdictions; and again, of the different stipulations in the same contract, some may be performable in one jurisdiction, and some in another, as in Hamlyn & Co. v. Talisker Distillery, where the obligation of Kemp & Co. to deliver free on board at Carbost, Skye, was performable in Scotland, while the clause of reference was performable in London, and required the co-operation of both parties there. It may also happen that in a given case the conflicting systems of law would fix different places of performance for "In the case of

1 Article 321 of the General German Commercial Code provides : a contract concluded between parties at a distance, the time at which the contract is concluded is held to be the time at which the declaration of acceptance is delivered for forwarding."

"The place from which the declaration of acceptance is sent is the place of concluding the contract." F. Litthauer's note to Art. 321 above, citing Decisions of the Reichsoberhandelsgericht, vii. (2d ed.) 11.

2 L. R. 1 Q. B. 115, 122.

In Cohen v. South Eastern Ry. Co., a contract for passage between Boulogne and London, Brett, J. A., suggested that the law of each country might govern that part of the contract which was performed within it. 2 Ex. D. 253, 262, 263.

In order to appreciate the full import of this case as an authority, it should be noticed that the clause of reference was both made in England and performable in England. The law of England might have been applied upon that ground, in accordance with a long line of previous decisions; but the House of Lords proceeded wholly the ground of the intention of the parties derivable from the contract.

the same stipulation. The only rule which can be affirmed is that the place of performance, like the place of making, is a fact to be considered in each case, in connection with the other facts, as evidence of the intention in regard to the governing law. Even Savigny, who maintains that the place of performance determines the law which shall govern the contract, and in deference to whose authority that is the prevailing view in Germany, rests his theory upon the inference of a voluntary submission of the parties to the law of that place; but this inference he says is always excluded by an express declaration to the contrary.2

4. The forum, or place where suit is brought, is a circumstance sometimes referred to as tending to show the intention of the parties. In In re Missouri Steamship Co., a claim against an incorporated English company, in voluntary liquidation, by an American shipper, upon a contract made in Massachusetts for damage to cargo by reason of the negligence of master and crew, the ques tion being what law should govern a clause in the charter party exempting the owners from liability for such negligence, Lord Justice Fry, in the course of the argument, said: "The clause is put in for the relief of the ship-owner. The natural forum for attacking an English ship-owner is England. Ought not the English law to govern ?"3 The Lord Chancellor, Lord Halsbury, also took the same point. The argument is, that the place where a remedy for breach of the contract, or any stipulation in it, is likely to be sought, is a circumstance tending to show a mutual intention to contract with reference to the law of that place. But as a rule the parties, at the time of making a contract, do not contemplate a breach, nor do they know with any certainty in what forum a remedy for breach will be sought. It may be conceded that there is always a probability that suit will be brought at the domicil of one of the contracting parties; but under the rules of the common law an action may be brought and prosecuted with effect in whatever jurisdiction the person of the defendant can be found, or, in some cases, where his goods can

1 Some of the continental codes contain provisions regulating the performance of contracts, and fixing the place of performance. General German Commercial Code, Arts. 324, 325; Civil Code of Saxony, §§ 702–710.

2 Savigny (Guthrie's transl., 2d ed.), § 369, p. 196; § 372, p. 223.

3 42 Ch. D. 321, 333.

Story, Confl. (8th ed.), §§ 538, 549; Westlake (3d. ed.), p. 212; Bar (2d ed.), 934,

et seq., Mr. Gillespie's note; Peabody v. Hamilton, 106 Mass. ́17.

In the Roman law, according to Savigny's exposition, the forum would be of much

« PředchozíPokračovat »