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be attached. There is no general or fixed presumption that suit will be brought at the domicil of the defendant rather than of the plaintiff. In fact, as the choice of the forum rests with the plaintiff, he is likely to select that forum where the law will be most favorable to his claim. As a rule, therefore, the circumstance of the forum must be considered of slight importance in determining the governing law.

5. Nationality of the parties, a circumstance of great and increasing importance in private international law on the continent of Europe,1 is seldom referred to, as an independent fact in contradistinction to domicil, by courts administering the common law. The domicil of the parties, a fact of the greatest importance in questions of personal status and capacity, and in the contract of marriage, although often mentioned in questions relating to the law which shall govern an ordinary contract, is seldom made the basis of elaborate argument. In Hamlyn & Co. v. Talisker Distillery, the residence of the parties was mentioned,2 but no special importance was attached to it.

When both contracting parties have the same domicil, the inference is strong that they are dealing with reference to the system of law under which they are living. What is to be said when the parties have different domicils?

Professor Bar contends that the law of the debtor's domicil is, in principle, the true starting-point from which to determine the governing law. He gives the preference to the domicil of the debtor, for this reason, "that the general propositions of law in the matter of obligations, the rules which do not give way to the pleasure of the individuals, exist generally in the interest of the debtor." Further, he says: "The person of the debtor is without doubt more closely bound up with the whole legal relation than that of the creditor." And the debtor must be understood as promising performance in the sense of the law which he knows, that is, to which he is personally attached. This theory, however, cannot be accepted. It cannot be admitted that a preference should be

greater significance as to the intent of the parties, since suit had to be brought either at the domicil of the defendant or within the forum contractûs, so called, the plaintiff having his election between those places. Savigny (Guthrie's transl., 2d ed.), § 372, p. 223.

1 See Bar (2d ed.), § 28, p. 252.

2 [1894] A. C. 206, 211, 213.

3 Bar (2d ed.), § 250, pp. 543-546; § 249, P. 539

given to the personal law of the promisor or debtor, that is, generally speaking, to the law of his domicil. The parties have an equal interest in the obligation. If, on the one hand, the promisor or debtor must be understood to promise in accordance with the law of his domicil, it must be supposed that the creditor or promisee understands the promise and expects performance in accordance with the law of his domicil. Assuming that each party is ignorant of the law of the other's domicil, neither can justly contend that the obiigation should be governed by his law. The fact of domicil, when the parties have different domicils, is in itself of no assistance in determining the governing law, because it has no tendency to prove a mutual intention, which is the controlling fact. When the contract is made inter absentes, by correspondence or otherwise, this proposition is clear. It is equally true, however, when one of the parties goes to the domicil of the other, and concludes the contract there. The importance to be given to the place of making the contract in such a case is greatly increased; while that of domicil remains unaffected.1

6. Other circumstances tending to throw light upon the question of the intention of the parties have been referred to in different cases by the courts. If the parties belong to different nations and speak different languages, the language used in making the contract, especially if it be in writing, may be of great importance. The same may be said of the form of the contract, if it is peculiar to the country of one of the parties, or of the use of legal terms peculiar to the law of one of the parties.2 The circumstances which may become material in different cases are scarcely capable of being enumerated, much less of being assigned any fixed weight.

1 In order to apply the theory of the law of the debtor's domicil to a bilateral contract, the ingenious suggestion was made that such a contract can always be treated as made up of two separate unilateral contracts, each party being a debtor in respect to what he promises. Savigny (Guthrie's transl., 2d ed.), § 369, p. 195; Bar (2d ed.), $ 250, p. 545. This suggestion, even if admitted to be sound, does not affect the arguAn unwarranted preference is still given to the law of the debtor. As to dividing a contract in the way suggested, see Laurent, vii. No. 450, p. 540.


Professor Bar (in § 250, p. 543) names Windscheid as among the adherents of his theory, which has strong supporters in Germany. Windscheid says: "The point of space to which binding legal relations belong, is determined through the domicil of the parties. In and by itself, not less through the domicil of the creditor than of the debtor." Lehrbuch (7th ed.), I. § 35. 3. Further, in a note to this section, note 4a, he criticises the position of Bar, and the similar position of Savigny, that the person of the debtor is more closely bound up with the entire legal relation than that of the creditor.

2 See Nelson, Private International Law, 276; Krell v. Codman, 154 Mass. 454, 457.

The only principle which can be stated is that the materiality of circumstances depends in all cases upon their tendency to show the intention of the parties, while their weight must be determined by the circumstances of each individual case.

7. It is always to be assumed, of course, that the parties are dealing upon the basis of good faith. If, therefore, it should appear that one party, at the time of the contract, entertained an expectation in regard to the law which should govern it, and that the other party had knowledge, or ought to have had knowledge, of this expectation, bona fides may require that the law so contemplated by one party shall be applied. This consideration may modify the effect of any or all of the foregoing circumstances in a particular case.1

If the intention of the parties to a contract is to be the controlling fact in the choice of a governing law, it is important to understand in what sense that expression is used. In most cases it is probable that the parties at the time of contracting do not contemplate the possibility of a question as to what law shall govern, and therefore entertain no conscious intention upon the point. In Hamlyn & Co. v. Talisker Distillery, it is very unlikely that either party knew or even suspected that the arbitration clause was void by the law of Scotland and valid by the law of England, and that it might be necessary to determine which law should govern. Nevertheless, the House of Lords held that the language of the contract clearly showed a mutual intention in respect to the governing law. The case is an authority for the proposition that the expression "intention of the parties," in the choice of a governing law, is used in the same sense in which it is used throughout the law of contracts. The law cannot look into the minds of parties; but it takes note of what they say and do, and determines their intention from their external acts.2 In cases where there is nothing in the language of the contract to show intention, the principle is the same. The question then is, What intention is reasonably to be inferred from all the material circumstances? or, as it was stated by Willes, J., in Lloyd v. Guibert, "to what general law it is just to presume that the parties have submitted themselves in the matter." The point to be emphasized is, that

1 See Bar (2d ed.), § 251, p. 548; § 253, P. 553

2 Pollock, Contracts (6th ed.), 5; Holmes, The Common Law, 309.

8 L. R. 1Q B. 115, 120, 121.

the intention sought is a true intention, in the sense of the law of contracts: that is, the reasonable meaning of the acts and language of the parties in view of all the material circumstances in the case. It is not a rule of law imposed upon the parties, under the pretence, or fiction, of enforcing a mutual intention.

The chief practical objection. which can be urged against abandoning the presumption arising from the place of making a contract is the uncertainty of decision which may result. But uncertainty exists under the present rule. In the important case of The Montana, which has already been referred to, a contract of affreightment between an American shipper and ship-owners having a place of business in New York and also in England, made and dated in New York and signed by the ship's agent there, contained a stipulation exempting the owners from liability for negligence of the master and crew, which was valid by the law of England, but void by the law of America as declared by the Federal, and many of the State Courts. The Supreme Court of the United States held that the American law applied, on the ground that a contract is presumed to be governed by the law of the place where it is made, and that there were no circumstances in the case to control the presumption. Soon afterwards, the English Court of Appeal, in the case of the Missouri Steamship Company, already cited, a case involving a similar stipulation, and presenting similar facts, reached an opposite conclusion. The Supreme Court in a very learned opinion by Mr. Justice Gray, collated and relied upon a long line of English decisions, while the Court of Appeal apparently assented to the general rule of law as it was stated in The Montana, but held that the contract and the circumstances showed an intention of the parties to be governed by the law of England. These de

1 "By 'intention' however we must always remember is meant, not the expressed or even the consciously entertained intention of the particular persons, but the intention which in the opinion of the Court most persons in the position of the particular parties would have entertained had their minds been called to the matter at the moment of entering into a contract or other legal transaction." 7 L. Q. R. 126 (A. V. Dicey).

Laurent expresses the thought in nearly the same form: “Car il ne faut point perdre de vue que le législateur est obligé de présumer ce que les parties auraient voulu, si elles avaient pensé à la loi qui régira leurs conventions." vii., No. 441, p. 531.

Professor Bar contends that it is misleading to reason from the intention of the parties, apparently upon the ground that the governing law is selected by positive rules independent of intention. Bar (2d ed.), § 247, pp. 536-538. He admits, however, that the decisions of the Imperial Court of Germany are opposed to his view.

cisions illustrate the uncertainty of the result in applying the existing rule. They also caused a diversity in the law of the two countries in an important class of maritime contracts.1 Since the decision in Robinson v. Bland in 1760, in which Lord Mansfield laid down the rule in favor of the law of the place of making a contract, the conditions of commercial intercourse have undergone a revolution. Steam and electricity must have their effect on legal rules, and it is doubtful if there is any practical advantage or justice in maintaining this presumption longer.

On the other hand, it is not to be asserted that the intention of the parties, even if it is the true principle to be applied, will, in all cases and without limitation, determine the governing law. Only one of those limitations will be stated here. In Hamlyn & Co. v. Talisker Distillery, the clause of reference was void by the law of Scotland as against public policy, and it was argued that her courts should not be compelled to enforce it, even if the contract was governed by the law of England, and valid.2 This argument was overruled by the House of Lords, upon the ground that since the Scots law permitted a reference where the arbitrators were named, an agreement in which they were not named could not be said to violate any fundamental or essential considerations of public policy. If the clause of reference had been in violation of such considerations, even though not contra bonos mores, nor criminal, nor expressly prohibited, it was implied by the judges that the courts of Scotland would not be compelled to enforce it. In other words, a contract may be valid, but not enforceable, and this distinction is of practical importance in the conflict of laws. The reader will find further illustration and discussion of the point in the recent interesting case of Emery v. Burbank, by Mr. Justice Holmes.

William Schofield.

1 Lloyd v. Guibert, L. R. 1 Q. B. 115; The Gaetano and Maria, 7 P. D. 137; The Industrie, [1894] P. 58. See also The August, [1891] P. 328.

2 As to the relation between the judicial systems of England and Scotland, see Bar (2d ed.), p. 94, Mr. Gillespie's note.

8163 Mass. 326. In this connection it may be mentioned that after the decision in The Montana, it was usual for English ship-owners to insert in bills of lading, and contracts of charter party a clause providing that all disputes should be decided according to British law; or, that the contract was made with a view to the law of England. The Iowa, 50 Fed. Rep. 561; The Energeia, 56 Fed. Rep. 124; The Hugo, 57 Fed. Rep. 403; The Guildhall, 58 Fed. Rep. 796; The Majestic, 60 Fed. Rep. 624; The Glenmavis, 69 Fed. Rep. 472. This clause was generally held ineffective. According to the distinction taken in Hamlyn & Co. v. Talisker Distillery, the inquiry should be

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