to a contract in one State differs very materially from that given to it in another. In such cases it becomes necessary to determine by what law the contract is to be governed in respect to the particular question at issue. This frequently presents serious difficulties. Indeed it may be truly said that there is no subject in the law with regard to which so much doubt, uncertainty, and confusion exists. The mixed array of decisions on the subject has been well described as "a trackless forest of

To this confusion the decisions of the courts have contributed no little by the vague and general expressions often used in cases where precise and accurate language and a careful analysis of the circumstances are essential to a correct conclusion, or at least would render invaluable aid in dissipating the obscurity enveloping the subject. In no branch of the law have ill-considered and conflicting dicta and decisions played such havoc with principle. It is of the utmost importance to correct conclusions with regard to this subject that absolute precision of thought and language be used.

A question which presents itself at the very outset arises. with respect to the proper law by which to determine whether any agreement at all has been entered into between the parties. A foreign contract is alleged by one party to have been made, but it is denied by the other that he ever assented to it. By the law of one State there may be a presumption that he has assented to it, while no such presumption may arise in the other. In such a case, the question is held to be merely a matter of evidence (pertaining to the remedy), and as such is to be governed by the lex situs of the remedy (lex fori)."

6

Thus, in Hoadley v. Transportation Co., an engine had been delivered to the defendant at Chicago for transportation to Lawrence, Mass., but was destroyed at Chicago in the great fire of 1871, without the defendant's fault. The defendant had given a receipt, excepting liability for loss by fire while in

4 Gross v. Jordan, 83 Me. 380, 22 Atl. 250.

• Hoadley v. Transportation Co., 115 Mass. 304; The Brantford City, 29 Fed. 373, 393. See Hartmann v. R. R. Co., 39 Mo. App. 88.

6115 Mass. 304.

depot or in transit. By the law of Illinois, where the receipt was given, the mere acceptance of a receipt did not import assent to its conditions without additional proof; while by the law of Massachusetts (forum) the acceptance of the receipt without dissent was sufficient proof of the contract and of assent to all its exceptions from losses not arising through negligence. At the trial, the receipt was put in evidence without further proof than its delivery to the shipper. The plaintiff recovered in the lower court, on the ground that the law of Illinois governed. But, on appeal, the lower court was reversed, on the ground that the question concerned only the mode of proof of the contract set up in the receipt, and that as a matter of evidence the case was governed by the lex fori.

So, evidence of an oral contract may be introduced under the lex fori, though the statute of Frauds of the State where the contract is made provides that no action shall be brought upon such a contract unless in writing. It is a mere matter of remedy."

But if a contract is alleged to be implied from the circumstances of the case, as an implied contract to pay for services rendered, etc., this is not a matter of evidence, and is not to be controlled by the lex fori. The law of the place where the services are rendered, and the implied agreement, if any to pay therefor springs up, determines the existence or non-existence of the contract. Thus, in Crumlish v. Improvement Co., an officer of a Pennsylvania corporation rendered it certain services there, and afterwards sued the corporation in West Virginia on a quantum meruit. By the law of Pennsylvania no contract for payment was implied in the case of services rendered by an officer of a corporation. By the law of West Virginia a contract for compensation was implied. The West Virginia court held that the Pennsylvania law should govern.

§ 152. Applications of General Exceptions to Foreign Law somewhat restricted in Case of Executory Contracts. - The second chapter of this work has been devoted to a consideration 7 Post, §§ 173, 174, 210.

8 38 W. Va. 390, 18 S. E. 456. See also Carnegie v. Morrison, 2 Met. (Mass.) 381, 397 et seq.

of the exceptions to the application of a proper foreign law. Omitting here any mention of the last of those exceptions (transactions affecting title to land), it will be recalled that four general exceptions were there enumerated: (1) Where the enforcement of the foreign law would contravene the policy of the forum; (2) Where it would work injustice to the people of the forum; (3) Where it would violate the canons of morality; (4) Where the foreign law is penal.

Theoretically, these exceptions apply as fully in the case of foreign executory contracts as in other cases. But, practically, the effect of some of them is much circumscribed by the fact that questions in connection with executory contracts usually arise as between the parties only, third persons generally having no interest therein; and by the fact that such contracts are voluntarily entered into, and are therefore controlled in large measure by the law of the actual situs of the parties. It would come in general with bad grace from one of the parties to afterwards seek the protection of his own law, merely because the performance of the contract had become burdensome.

There are instances however in which these exceptions will be applied to contracts as well as to other matters. Indeed, the third exception, namely, that the transaction is contra bonos mores, has its main application in the case of executory contracts. So the fact that the enforcement of a foreign contract is contrary to the interests or policy of the forum will be sufficient ground for substituting the lex fori, and declaring the contract invalid, though valid by its proper law."

The second exception, injustice or detriment to the citizens of the forum, is of less frequent application. Indeed some of the courts deny its existence altogether as applied to executory contracts. Such transactions having been voluntarily entered into abroad, and the parties having deliberately submitted themselves to a foreign law, they will not be permitted to claim (according to this view) in the courts of their own State that the enforcement of their contract will work a hardship or a detriment to them. This exception applies to executory con

tracts (and even this is denied by many courts) only in cases of incapacity to contract, where the law of the party's domicil has afforded him protection, because of some legal disability, there deemed sufficient to incapacitate him from contracting. Under such circumstances, the protection afforded by the lex domicilii against the party's domestic contracts will sometimes, when his foreign contract is sought to be enforced in the domicil (forum), be held to protect him against the effect of his foreign contracts also. This matter of capacity is the only one in respect of which the second exception can be said to apply to executory contracts. Capacity is a passive quality, not an active step in the making of a contract.

The fourth exception (where the foreign law is penal) also has an occasional application to contracts, in cases where, by way of punishment, or as the result of punishment, a person is incapacitated to enter into particular contracts. Such is the case of a guilty party to a divorce suit who is prohibited to marry again.*

8 This has been fully discussed in connection with the law governing capacity. See ante, §§ 72, 73.

♦ This however is a case of an executed contract. An instance of the application of this exception to executory contracts would be difficult to find, since punishments do not usually take the turn of prohibiting the party to Penal disabilities in general have been discussed.

contract.

§§ 10, 74.

See ante,

CHAPTER XV.

LOCUS CONTRACTUS.

· (1) If

§ 153. Conflicting Views as to Situs of Contract. we suppose a contract made in England, to be performed there, in consideration of an act done there by the promisee, and an action to be brought there for its breach, we have, from the standpoint of the English courts, a purely domestic contract. No foreign element whatever enters into it, and therefore there is no room for the application of the principles of private international law.

(2) The other circumstances remaining the same, if we suppose that suit is brought upon the above contract in New York, the situs of the remedy has been shifted to New York, but the situs of the contract remains unquestionably in England. The most ordinary comity and sense of justice demands in such a case that the mere accident of suit being brought in New York should not constitute any ground for giving the parties a different measure of justice than would be meted out to them in England. The law of England should govern the contract in every respect, as before, while the law of New York would now govern the remedy, and only the remedy.

(3) The other circumstances remaining as in the last case, let us now suppose that the contract by its terms was to have been performed in Massachusetts. Another element is thus removed from the operation of the English law, the element of performance, and has been given a situs in Massachusetts.

(4) If we now go a step further, and suppose the contract to have been entered into in Scotland, yet another element has lost its English situs. The making of the contract now has its situs in Scotland. The only element retaining its English situs is the consideration of the contract.