in another state to sell some moveable property in this second State. The principal dies, the agent sells the property in ignorance of, but after the death. By the Law of some States-e.g. Massachusetts-the death of the principal revokes the letter of attorney, and the act of the agent would be invalid; by the Law of other States-e.g. France and Louisiana-the act of the agent done in bona fide ignorance of the death of the principal would be valid (ƒ).

If the principal reside in the State the Law of which revokes the letter of attorney, and the agent in the State the Law of which upholds it, which Law shall govern this

contract?

Story (g) remarks, that there is no doubt that when an authority is given to an agent to transact business in a foreign state for a principal, the authority is, in the absence of proof to the contrary, to be construed and enforced according to the Law of [the place where the business is to be transacted. "But," he continues, "this may well be "admitted to be the rule while the authority is in full "force, without making the law of that place the rule by "which to ascertain whether the original power of attorney "is still subsisting, or is revoked, or dead by operation of "law, in the place of its origin. The point has never, as "far as my researches extend, been directly decided either "at home or abroad."] It would seem, however, that his opinion rather inclines to holding that the Law of the state in which the principal resided should prevail (h). But surely the first principle of Private International Law

(f) Story, Conflict of Laws, s. 286 d.; Story on Agency, ss. 488-489. Civil Code of Louisiana, art. 3001.

Civil Code of France, art. 2008.

Pothier, Oblig. partie i. chap. i. num. 81.

(g) Conflict of Laws, s. 286 d, citing in a note Owings v. Hull, 9 Peters, (Supreme Court) Rep. pp. 607, 627, 628.

(h) The analogies, moreover, to which Story refers as to the limited authority of the master of a ship, are questionable. Vide post, chapter xli., and Story, ibid. s. 286 b.

namely, the duty as well as the expedience of upholding, wherever it is possible, bona fide transactions with the subjects of foreign states-leads to a different conclusion, and is in accordance with the doctrine of France and Louisiana.

DCCVI. This portion of the subject, relating to the law applicable to contracts concluded by a correspondence, may be not impertinently closed by the statement of Savigny's opinion. He observes that

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"The greater number of contracts are concluded at a personal meeting of two parties. In this case the place "in which the parties are both present, is also the place in "which the obligation originates. This is the road which "is most usually travelled, but it may be departed from by "various ways.

"For instance, a particular law or the will of the parties "may render the observance of certain formalities neces66 sary to the validity of the contract; such as, that the "contract should be reduced into writing, or that there "should be the intervention of a notary public, or of a "court of justice.

"In such cases the true place of the contract is the "place in which these formalities are executed, for previously to their execution neither party is bound.

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"A more difficult and a more frequent case is one in "which the contract is made, not by the parties in person, "but by means of an agent, or by an instrument signed "in different places, or, lastly, through a simple corre"spondence by letter. As to this class of cases there "is a great difference of opinion; such a case, in fact, "embraces three distinct questions, although the greater "number of writers have not discriminated them.

“i. In what place was the contract made?

"ii. What place furnishes the jurisdiction over it? "iii. What place furnishes the local Law, to which it " is subject?

"Upon the first question I do not hesitate to answer, "that the place of the contract was the place in which

"the first letter was received, and from which an affirma“tive answer was sent; because there was expressed the "agreement between the wills of the parties.

"The writer of the first letter is therefore to be con"sidered as having betaken himself to the residence of the "other party, and there to have received his consent.

"This doctrine has been adopted by various writers; "others, on the contrary, raise against it the following "objections.

"The affirmative answer might have been, they urge, "withdrawn before it reached its destination; or have been "annulled by a revocatory declaration: the contract, there"fore, is only complete in that place in which the writer of "the first letter received the answer, and became aware of "the consent of the other party.

"But it cannot be admitted that we may set aside the "true principles of Law on account of so exceptional a 66 case. It most frequently happens that the two declara"tions succeed each other without the least difficulty of the "kind suggested; and if such difficulty should appear, the question could not be decided without regard being had "to a number of particular circumstances; so that for such "a case the perfectly arbitrary rule, which those who oppose "my opinion lay down, would be wholly insufficient.

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"I pass on to the second question-In what place does "the jurisdiction over the obligation exist, when the con"tract is effected through the medium of a correspondence "by letter?

"It might be answered, according to analogy, in that 66 'place in which the first letter was received, and followed "by an affirmative answer. But this is absolutely inadmis"sible. In truth, the sender of the first letter can, at the "utmost, be only likened to a traveller; certainly not to one "who has established a permanent residence at the domicil "of the other party: he has not therefore submitted himself "to the jurisdiction of that place.

"A contract made through the medium of a correspon

"dence can only, in its relation to each party, be considered "as having been made at his own domicil, and as subjected "to the special jurisdiction which appertains to every obli

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gation considered in and by itself; if, nevertheless, the "contract specified the place of its performance, this speci"fication would determine the jurisdiction over the obliga❝tion.

"The particular nature and exigencies of a contract "effected by Promissory notes or Bills of exchange intro"duce important modifications of these principles. Thus "in that law of Prussia, which was the means of bringing "about the new law on Promissory notes and Bills of ex"change throughout Germany (i), it was provided that not "only did the place of payment and of domicil determine "the jurisdiction, but that every party liable upon the Pro"missory note or Bill of exchange might be cited before "that tribunal in which an action upon the note or bill had "once been brought or founded” (ii).

As to the third question, Savigny is of opinion that the local Law is that of the place of performance if any be specified; if none, then each party remains subject to the Law of his own domicil (j).

DCCVII. The Prussian Code provides that, when a different Law prevails at each domicil as to the form of the contract, that Law shall be followed which best maintains the [transaction or] contract (k). It would be, Savigny thinks, in accordance with the spirit of this law to apply to the debt or obligation of each party the Law of his own domicil. He again excepts, on account of their peculiar

[() As to the modern Prussian Law on bills of exchange, vide suprà, § deciii. note (b).]

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(ii) Savigny, R. R. viii. s. 371 a.

(j) Ubi sup. s. 373 a.

[(k) so ist die Gültigkeit der Form nach den Gesetzen desjenigen Ortes zu beurtheilen, nach welchen das Geschäft am "besten bestehen kann." Theil I. Tit. v. § 113; suprà, § dcc. note (i).]

character, notes and bills from the application of this principle (kk).

DCCVIII. It has been already observed (1) that Grotius (), speaking of a "pactio inter absentes per literas," has said, "talia enim pacta solo jure naturæ reguntur." Savigny regrets that writers who maintain this opinion have not stated in what treatise of Natural Law directions upon the subject are to be found.

DCCIX. Among the immediate effects of the contract Fœlix includes the delivery of the thing sold, the payment of the price, the actions of buyer and seller, the rights of rescinding or dissolving the contract for whatever legal cause (m).

DCCX. So also the obligation of the seller to bear the loss of the thing sold, occasioned by his mora; and Demangeat adds, the obligation of the buyer to pay the price, notwithstanding the loss of the thing sold, when that loss has not been caused by the act or fault of the seller, the obligation to pay interest and all incidents connected with it, but not of damage, the question whether the obligation be real or personal-whether the obligors are singly or jointly responsible, the question of acquittal or discharge of the obligation.

DCCXI. Of these consequences and effects of the contract, the following principally have been the subjects of discussion in the English and United States Courts.

DCCXII. There is a question as to what Law governs the repayment of advances made by a merchant in one State at the request of a merchant resident in another (mm).

(kk) R. R. viii. s. 373 A; et vide infrà, chapter xlii.

(1) Vide suprà, § dcc. ; et vide Massé, ed. 1874, liv. v. tit. i. ch. vi. ss. 1, 5, De la correspondance.

(l) De J. B. ac P. lib. ii. c. xi. § v. 3. Savigny, ubi sup.

See, too, Hertius, De commeatu literarum, §§ 16-19 (Comm. vol. i. pp. 243, 244).

[(m) Felix, liv. ii. tit. i. s. 109.

(mm) Cf. suprà, §§ dexevii. dexcviii.]