before we discuss in detail the proper subject-matter of this work, viz., contracts not under seal.*

"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 follows: 1. Contracts of Record; 2. Specialties; 3. Simple Contracts."

* Chitty (Jun.) on Contracts (by Russell), ed. 1857, p. 1.

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 this question, first, with respect to (A) THE FORM, and, secondly, with respect to (B) THE SUBSTANCE of an obligation.

DCXXIII. First, then, we have to consider which Law, in an apparent or real conflict of Laws, should govern THE FORM, and the prosecution of this enquiry 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 general—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 equally applicable to all the foregoing categories:

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

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

7. 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 or 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 place of fulfilment in the place of the origin,—the general usage of states in

(a) Savigny, R. R. viii. (5), s. 344.

Örtliche Gränzen der Herrschaft der Rechtsregeln-Zeitliche Gränzen der Herrschaft.

(b) Savigny, VIII. s. 381.

(c) E. g. The Prussian Law requires a testament to be made through the intervention of a Court of Justice. A Prussian dying in France or England, therefore, must die intestate, if he happen not to have made his will before he entered into either of these states.

creasing 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.

1. 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, or 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.

2. 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.

To the former class belong the usual class of Contracts, and, in the opinion of Foreign jurists, the making of a testa

ment.

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.

(d) Story, s. 260, 261, and the authorities there cited.

Savigny, VIII. s. 381, and note c.

Fælix, 1. 2, t. 1, c. 1, s. 17, &c., and the authorities there cited.
P. Voet, De Stat. sect. 9, c. 2, s. 9.

J. Voet, s. 13-15.

(e) Savigny, ib.

Pre-eminent among such acts is that of Tradition; 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 disposition or Contract," Lord Mansfield said, "where the subject-matter relates locally to England, "the Law of England must govern and must have been in"tended 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 "there." (ƒ)

DCXXVII. The Roman Law contained no special provisions with respect to Contracts affecting Immoveable Property; but the legislations of many countries require that in these cases the lex rei site shall be observed. The Prussian Code does so in express terms; (g) and according to that Law, inasmuch as all Contracts for a value of above 50 Thalers must be in writing, it follows by almost necessary implication that all immoveable property in that country can only be transferred by a written instrument.(gg)

The English Law contains, a like provision.(h)

(f) Robinson v. Bland, 2 Burrows, Rep. 1079; 1 W. Blackst. Rep. 259. Cf. Donelli, Comm. lib. xvii. c. 17.

(g) Savigny, VIII s. 381 (354).

Pr. Algem. Landrecht, I. 5, s. 115.

(gg) Savigny, ib. n. (e).

(h) Vide post, notice of the Statute of Frauds.