CHAPTER XXXIV. OBLIGATIONS-SUBSTANCE-REASON OF THE THING. DCXLIX. We have now to consider the Law which in a real or apparent conflict of laws should govern an obligation as to (B) THE SUBSTANCE. (a) DCL. In the prosecution of this inquiry it is proposed to observe the same order as has already been observed with respect to THE FORM of an obligation. First, then, What are the true principles derived from the Reason of the Thing? Obligations, like other Rights to Things, must appertain to a definite place. With respect to that Right to Things, as we have seen, (b) the person is taken out of his abstract individuality and brought within the domain of a local Law governing his right. What is this place? What is, to borrow the expression of Savigny, (c) the seat of the obligation? The answer as to the peculiar class of rights termed Obligations has a peculiar difficulty. The object of other Rights is material and sensible; but the object of an obligation is, comparatively speaking, incorporeal and invisible, and we must begin by giving a body to it, in order to answer the question. We are enabled to give this visible body to the obligation by considering its nature and its outward appearance or development. Now, every obligation (1) arises out of visible facts, and (2) must be fulfilled through the medium of visible facts and both classes of these facts must happen in a particular place. (a) Savigny, VIII. s. 369-370. Is the former or the latter place-or, in other words, is (a) the place where the obligation is entered into, or (8) the place where it is to be executed-the true seat of the obligation? (d) DCLI. (a) The reasons against considering the place of the origin of the obligation to be the seat of it appear to be, that this place is accidental, of a transitory character, and unconnected with the actual development and practical working of the obligation. B. The principal reasons for considering the place of the fulfilment of the obligation to be the seat of it appear to be, because this place is intimately connected with the essence of the obligation; for the essence consists in this, that something which previously to the obligation was uncertain and was within the competence of the obligor to do or not to do, has since the obligation become certain and necessarily binding on him. (e) Now, this certainty and necessity constitute the fulfilment of the obligation. The place in which this certainty and necessity can be reduced to practice is the place which the parties to the obligation have had in view, for it is the place of the fulfilment. (f) This place must be identical with the proper (d)" Factorum genera, unde obligatio oritur sunt illa, quæ ante com"memoravi, quatuor, contractus, quasi contractus, maleficium, quasi "maleficium.”—Donellus, lib. XVII. c. 14, p. 60, 30. Donellus, lib. XVII. c. xvii. to end of c. xvii., well deserves the most careful study on this subject. (c) The obligations of do ut des facio ut facias &c., are, in truth, double obligations, and do not impugn the position in the text. (f) Donellus, lib. XVII. c. 12. p. 51: "Jure communi omnino quatuor res sunt quæ eos, qui ex personâ "suâ conveniuntur* jurisdictione ejus apud quem agitur subjiciunt"Domicilium litigatoris in teritorio judicis constitutum-Obligatio, quâ de agitur, ibi contracta-Res ita sita de cujus proprietate aut possessione agitur. Judicium ibi apud eum cæptum". 66 «* est autem convenire aliquem, coram appellare, cum præsente agere, de re แ aliquâ qui nobis de ea re respondeat: ut præsens quidem dicatur con"veniri, absens autem per præsentem defendi.” (Ch. xi. 49, 40.) forum to the adjudication of which the obligation is naturally and by the free will of both the parties made subject. But though the seat of the obligation and this jurisdiction to which it is naturally subject are in truth one, this remark nevertheless does not apply to an accidental forum, or even to the forum domicilii of the defendant, which, according to the opinion of the best jurists, may be always resorted to by the plaintiff. (g) Many of the earlier writers were of opinion that the place of jurisdiction was identical with the place of the origin of the obligation; an error which, as Savigny remarks, arose from confounding all obligations with contracts, and which led them to use the expression forum contractus, which is unsatisfactory and unscientific, however generally adopted, and which arises from a misapprehension of a passage, which will presently be noticed, in the Roman Law. It is to be observed, however, that even these writers admit so many exceptions to their rule as practically to destroy it. Modern writers, on the contrary, usually abandon this rule, and in lieu of it identify the place of jurisdiction with the place of the fulfilment: and rightly, if this latter be correctly determined. It is to be always remembered that in obligations it is the will of the contracting parties and not the Law which fixes the place of the fulfilment—whether that place be fixed by express words or by tacit implication-as the place to the jurisdiction of which the contracting parties elected to submit themselves. This jurisdiction, again, is intimately connected with the particular Law which is to be applied to govern the obligation. DCLII. The question, therefore, as to what is the seat of an obligation is one of theory only, but nevertheless the consideration of it assists the answer to the two practical questions-viz., (g) Savigny, viii. s. 355 (72), s. 370 (212), s. 372 (248). I. To what jurisdiction is each obligation subject? II. What local Law is applicable to it? As, generally speaking, these two coincide, the same answer applies to both. According to Savigny (h) that jurisdiction and that local Law are to be found 1. In the place where the will of the parties has fixed the fulfilment of the obligation, whether this will be directly expressed, or be necessarily deducible from the nature of the acts which accompany the obligation. 2. In default of any place so fixed, then in the place where the obligor carries on the business which gave rise to the obligation. 3. In the place of the origin of the obligation, when it happens to be identical with the domicil of the obligor. 4. In the place of the origin of the obligation, though it be not the domicil of the obligor, if the circumstances show that this is the place of the fulfilment contemplated by the parties. 5. In all other cases in the domicil of the obligor. DCLIII. Though the place of special jurisdiction and the local Law of the obligation thus generally coincide, there is one important difference between them. The plaintiff or obligee may always elect at his pleasure the forum either of the special or of the general jurisdiction; viz., that of the domicil of the defendant or obligor. But the plaintiff or obligee alone cannot abandon at his pleasure the local Law applicable to the obligation, that being always exclusively determined either by a specified place of fulfilment, or in default of that by the place of the origin of the obligation, or by the domicil of the obligor, according to the circumstances of each case. DCLIV. As all the foregoing rules rest upon the presumption that the obligor has voluntarily submitted himself to a particular (h) VIII. s. 370 (226-7), 372 (247). local Law, that presumption may be rebutted either by an express declaration to the contrary, or by the fact that the obligation is illegal by that particular Law, though legal by another. The parties cannot be presumed to have contemplated a Law which would defeat their engagements. Nor is it to be understood that these rules as to the seat and the local Law of obligations, though generally applicable, can be without exception applied to every possible question of legal right arising out of an obligation. This is a subject which requires a profound and comprehensive study of the different kinds of obligation and of the different questions of legal right arising from them. (i) DCLV. Secondly As to the doctrine relating to this subject to be collected from the Roman Law. This question again subdivides itself into two inquiries : 1. What is the general doctrine of the Roman Law as to the true place or seat of the obligation? 2. What is the doctrine of the Roman Law relative to a conflict of Laws of different states upon this matter? (I.) With respect to the general doctrine of the Roman Law as to the true place or seat of the obligation. (k) The true rule of the Roman Law appears to be, that, if the place of fulfilment be not determined by the express words of the Contract, the debtor must fulfil his obligation wheresoever he is sued, ubi petitur; so that the place of fulfilment would depend, according to this Law, upon the option of the creditor. He might choose the forum originis or the forum domicilii; and the debtor might have various domicilia, each sufficient at least to found a jurisdiction for this purpose. According to the Roman Law, therefore, the place of fulfilment would not determine the place of jurisdiction, but would be determined (i) Savigny, viii. s. 372, s. 374. |