demande), but on the defendant's particular reply to it (des défenses).

It can scarcely be doubted, however, that whatever may be said—and something is said in a later chapter as to the mode of procedure and all that appertains to it being governed by the lex fori-Folix errs in ranging under that Law what foreign jurists call défense or exception péremptoire, i.e. a plea to the validity of the obligation itself, and not merely the technical defence which is implied by the simple term exception.

The fourth exception is when two or more fellow-citizens enter into a contract in a country equally foreign to both.

In this case Fœlix follows John Voet (h) in pronouncing, that if the contract be in accordance with the Law of their common country it is valid everywhere, and at all events in their own country.

The fifth exception is when the contract is entered into for the purpose of evading and defeating the Law of the country of one of the contracting parties (i).

But this is an exception which Savigny rejects, and as to which Demangeat, the last editor of Fœlix, thinks it open to the discretion of the judge to say whether the contract shall be null and void or some other penalty be inflicted (k).

DCLXII. To the foregoing exceptions Fœlix adds special considerations upon the following points (7):

i. Where the contract has been made whilst the parties contracting were passing through different places.

ii. Where it has been effected by an agent or by correspondence.

iii. With respect to the confirmation of contracts.

(h) Ad Dig. lib. i. tit. iv. pars ii. De statutis, s. 15.

(i) Fælix, ubi sup. s. 102.

(k) Folix, ubi sup. c. i. (Forme extérieure) s. 82, Demangeat's note (a).

[(1) Fœlix, ubi sup. c. ii. ss. 104-108.]

iv. With respect to changes in and modifications of contracts.

v. With respect to conditional conventions or contracts. These special points will be considered in the following pages, in which the doctrine of the English and United States Courts, on the general subject of foreign contracts, is about to be discussed.

CHAPTER XXXV.

OBLIGATIONS-SUBSTANCE-continued.

DCLXIII. Fourthly

We have to consider what are the rules to be deduced from the writings of jurists, and from the decisions of the tribunals in England and the United States of North America, upon a real or apparent conflict of laws with respect to the substance of obligations or contracts. But in prosecuting this inquiry it will be expedient to distinguish between

i. The general Law relating to Obligations and Contracts.

ii. The lex mercatoria or Law Merchant upon this subject, which again requires subdivision into

a. The general Law Merchant.

B. The Law relating to Bills of Exchange.

DCLXIV. Story's eighth chapter in his " Conflict of Laws" is rich in ample quotations from jurists of a date precedent to the present century, with the exception of the great civilian Donellus, to whom it is a matter of surprise that he makes no reference, although this admirable commentator does not treat directly of a conflict of the laws of different states.

Of the modern writers, such as Felix, Massé, Demangeat, in France,-Rocco in Italy,-Wächter and Savigny in Germany,-Story refers, and but occasionally, to Fœlix

alone.

In the following pages the writings of these authors will be frequently referred to (a); while for the earlier

(a) See also [Bar's International Law, Private and Criminal, translated by G. R. Gillespie, §§ 66 88.]

writers, with the exception of Donellus, Story will be very generally relied upon.

DCLXV. There are particular expressions of modern jurists upon the subject of obligations and contracts, to the understanding of which the following observations may conduce (b).

The facts which found a legal right are of two kinds, and, so to speak, perform two functions (c) :

i. They are either such as perform the general and necessary function of causing the application of an ascertained rule of Law;

ii. Or they perform the particular and accidental function of necessitating the making a rule of Law, to meet the special case.

In the language of English jurisprudence, the former case would be governed by the application of the express words of a statute or the authority of a judicial precedent; the latter case would be governed by the new application of an old principle of Law.

Having regard to these two classes of facts, modern jurists have very generally adopted a division of the attributes of an obligation into

a. Essentialia;

B. Naturalia;

7. Accidentalia;

a division which rightly implies that in an obligation there are inherent

a. Attributes without which the very notion of the obligation would be at an end; as, in a loan, the actual delivery of the thing lent.

B. Attributes which are inherent in the obligation, but which the will of the contracting parties may separate

(h) Savigny, Obligationenrecht, i. s. 3.

(c) [“ . . . dass die juristischen Thatsachen überhaupt in zwei verschiedenen Functionen vorkommen." Savigny, ibid. s. 4; et cf. Savigny, R. R. iii. s. 104.] These observations are applicable to other portions of Law, as well as to obligations.

from it; as, the diligentia, which, as a matter of general law, is required at the hands of the Vendor, or the Hirer.

y. Attributes which are not, as a matter of general Law, inherent in the obligation, but which the will of the contracting parties may make so inherent (pacta adjecta).

DCLXVI. The Roman jurists recognized these distinctions; but it is important to observe how they applied to them the technical terms of their legal vocabulary (d). They use two technical terms to express the essentialia of modern jurists.

i. Substantia;

ii. Natura;

but they still more frequently use the term "natura" to express the naturalia of modern jurists.

In applying therefore the Roman Law, great care must be taken to ascertain in which sense the term natura is used in the passage cited.

DCLXVII. Many modern jurists also make use of the expression autonomy, as designating the case in which the facts founding the legal right are of the special character belonging to the latter of the two divisions just mentioned; but against this use of the term Savigny strongly protests (e). It is a term borrowed from the Public Law of Germany, in which system it is used to designate a peculiar privilege of the nobles and of certain Corporations to govern themselves by a kind of domestic legislation. Having therefore a defined juridical meaning, the applica

(d)" Quod si nihil convenit, tunc ea præstabuntur quæ naturaliter insunt hujus judicii potestate."-Dig. lib. xix. t. i. 11, § 1.

"Et potest mandatum ex pacto etiam naturam suam excedere."Dig. lib. xix. t. v. 5, § 4.

"Quotiens enim ad jus quod lex naturæ ejus tribuit, de dote actio redit."-Dig. lib ii. t. xiv. 27, § 2.

(e) Oblig. i. s. 4, and R. R. viii. s. 360, notes (a), (b), (c).