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NOTE TO CHAPTER XXXII.

J. Chitty (Jun.) on Contracts (by Russell, 11th Ed. 1881) pp. 1, 2.

"The term 'Obligation' is used by the Roman Jurists, and by Pothier in the preliminary article to his treatise on Obligations, as denoting, in its proper and confined sense, every legal tie which imposes the necessity of doing or abstaining from doing any act; and as distinguished from imperfect obligations, such as charity and gratitude, which impose a general duty, but do not confer any particular right; as well as from natural obligations, which, although they have a definite object, and are binding in conscience, cannot be enforced by legal remedy. English lawyers, however, generally use the word obligation in a more strict and technical sense, namely, as importing only one particular species of contracts, that is, Bonds; and they adopt the term 'Contract' when they wish to convey the more extensive idea of the responsibility which results from the voluntary engagement of one individual to another, as distinguished from that class of liabilities which originates in torts or wrongs unconnected with agreement. In the language of our Law, therefore, the general term Contract comprises every description of agreement, obligation, or legal tie, whereby one party binds himself, or becomes bound, expressly or impliedly, to another, to pay a sum of money, or to do, or omit to do, any particular act; whereas the term Covenant is properly applied to denote a contract under seal; and the term Agreement is rarely used except to denote a contract not under seal. Whilst the term Promise is used to signify any mere parol engagement by one person with another, where there is no consideration for the promise, nor any corresponding duty on the part of him to whom it is made.

"It is not, however, very material to consider what particular meaning is generally attached to these various terms. The essential distinctions between the different kinds of contracts constitute a much more important subject of inquiry. These distinctions are clearly ascertained; and, as they assign to each class of contracts attributes and consequences of the most marked character, they demand our notice before we discuss in detail the proper subject-matter of this work.

"Contracts, or obligations ex contractu, are of three descriptions, and they may be classed, with reference to their respective orders or degrees of superiority, as follow :-(1) Contracts of Record, (2) Specialties, (3) Simple Contracts."

CHAPTER XXXIII.

OBLIGATIONS-CONFLICT OF LAWS.

DCXXII. THE foregoing sketch of the leading principles of the Law governing Obligations, adopted by the chief countries of the civilized world, has shown that amid much general similarity there are not unimportant points of difference between them.

We are now led to consider what rules International Comity requires to be adopted in those cases in which one and the same Obligation is, in some of the stages from its inception to its fulfilment, subjected to the jurisdiction of different countries possessing different municipal laws upon the subject.

It is proposed to examine the question, first, with respect to THE FORM, and, secondly, with respect to THE SUBSTANCE of an Obligation.

DCXXIII. First, then, we have to inquire which Law, in an apparent or real conflict of laws, should govern THE FORM; and the prosecution of this inquiry will perhaps be best conducted by observing the following order:

1. To consider what are the true principles derived from the Reason of the Thing, having especial regard to the expression of that Reason in the general usage of civilized states (droit coutumier général allgemeines Gewohnheitsrecht).

2. What is the doctrine relating to this subject of the Conflict of Laws in the jurisprudence of ancient Rome.

3. What are the express provisions of modern Codes.
4. What are the rules to be deduced from the decisions

of the tribunals in England and the United States of North America.

DCXXIV. The following general observations appear to apply equally to all the foregoing categories :

a. The distinction between the Law applicable to the form and that applicable to the substance of the Obligation is recognized in all these categories.

B. The distinction between obligations juris gentium and juris privati is recognized in all these categories.

y. The conflict of laws may ensue from two causes, either from a collision between different laws on the same subject in the same territory, or from the collision of different laws in different territories, on the same subject (a). In the first instance, the conflict arises from the change of the law itself, as where a later abrogates or repeals an earlier law. In the second instance, the conflict arises from a change in the condition of the facts of the person, by which they fall

under the dominion of different laws.

DCXXV. First, then

What are the true principles derived from the Reason of the Thing, and how has that reason been expressed in the usage of civilized states (b)?

The true theory of the subject would seem to require that the form of the contract should be regulated by the Law of the place of its fulfilment or execution.

But as in practice it often happens that the place of fulfilment is far removed from the place of the origin of the contract, as it may be difficult to know and even impossible (c) to follow the forms prescribed by the Law of the

(a) Savigny, R. R. viii. s. 344.

"Örtliche Gränzen der Herrschaft der Rechtsregeln. "Zeitliche Gränzen der Herrschaft."

(b) Savigny, ibid. s. 381. Bar, §§ lxvi. et seq.

(c) E.g. The Prussian Law requires a testament to be made through the intervention of a court of justice. [Were it not, therefore, for the benefit of the rule locus regit actum, a Prussian dying in France or England would be forced to die intestate, if he happened]

place of fulfilment in the place of the origin,-the general usage of states, increasing in force ever since the sixteenth century, has almost universally adopted the rule which is expressed by the phrase locus regit actum (d).

DCXXVI. There are, however, important exceptions to the recognition of this rule.

i. Foreign jurists (e) hold that where the status of the Person is concerned the rule is inapplicable. The person who is a minor by his domestic Law cannot become a major by the operation of foreign Law, nor a person declared infamous by the former become rehabilitated by the latter.

The rule applies only to the legal form in which the expression or declaration of the will of the party interested shall be couched.

The question of status is not under the control of the will of the person interested, but is under the authority of the State of which he is a member.

ii. The legal acts of a person are of a twofold character, and there is an important difference between them.

a. There are legal acts which can be done anywhere and are wholly unconnected with any particular place.

B. There are legal acts which are necessarily connected with a particular place (f).

not to have made his will before he entered into either of those States. [See Savigny, ibid. ss. 381, 382 (pp. 350 and 365 of edition 1849, Berlin); Prussian Code, Theil I. Tit. xii. §§ 66, 67; and infrà, § dcxli., note (mm).]

(d) Story, ss. 260, 261, and the authorities there cited. In Guepratte v. Young, 4 De G. & Sm. p. 217, it is laid down that locus regit actum is a canon of general jurisprudence, and must be assumed, in the absence of contrary evidence, to apply to a system of foreign law. [See Smith's Leading Cases, vol. i., notes to Mostyn v. Fabrigas.]

Savigny, ibid. s. 381, and note (c).

Fælix, liv. ii. t. i. c. i. ss. 73–85, and the authorities there cited. P. Voet, De Stat. sect. ix. c. ii. § 9.

Cf. J. Voet, lib. i. tit. iv. (pars secunda) § 10, ss. 13-15.

(e) Savigny, ibid. s. 381, num. i.

(ƒ) An English court has holden that an agreement entered into in France, but intended to be executed in England, being of such a nature

To the former class belong contracts of an ordinary kind, and, in the opinion of foreign jurists, the making of a Testament.

To the latter class belong perhaps the most numerous and most important of those acts which relate to the Right to Things-acts which are so intimately connected with the Things themselves, upon which they operate, as to be necessarily done in the place in which the Things are situated.

Pre-eminent among such acts is that of Tradition [or Delivery]; among them also are many transactions of mere form, such as the act connected with Bankruptcy or Insolvency, termed the Judicial Cession (cession judiciaire -gerichtliche Auflassung), Enrolment or Registration of mortgages or deeds, and others of a like character, which can only be duly executed before a particular public functionary and at a particular place.

In these instances, according to the general jurisprudence of States, the lex rei sita prevails; and it is to be observed that this rule cannot be confined to Immoveable Things, but must be extended sometimes to such as are Moveable, as, for instance, in those cases in which the Tradition of the Thing itself is necessary. "In every dis"position or contract," Lord Mansfield said, "where the subject-matter relates locally to England, the Law of England must govern and must have been intended to govern. Thus, a conveyance or will of land, a mortgage, a contract concerning stocks, must all be sued upon in "England; and the local nature of the thing requires "them to be carried into execution according to the law "here" (g).

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that, if entered into in England, it would have been void for Champerty, cannot be executed in England; Grell v. Levy, 16 C.B. N.S. P. 73.

(g) Robinson v. Bland, 2 Burrow's Rep. p. 1079; 1 W. Blackstone, Rep. p. 259.

Cf. Donellus, De Jure Civ. lib. xvii. c. xvii.

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