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{{Short description|Aspect of law}} |
{{Short description|Aspect of law}} |
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{{Article for deletion/dated|page=Conflict of contract laws|timestamp=20240121014616|year=2024|month=January|day=21|substed=yes|help=off}} |
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{{Verify|date=January 2024}} |
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{{Conflict of laws}} |
{{Conflict of laws}} |
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In the [[conflict of laws]], the validity and effect of a [[contract]] with one or more foreign law elements will be decided by reference to the so-called "[[proper law]]" of the contract. |
In the [[conflict of laws]], the validity and effect of a [[contract]] with one or more foreign law elements will be decided by reference to the so-called "[[proper law]]" of the contract. |
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==History== |
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==Incapacity through age== |
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In England, until the middle of the 19th century, the [[court]]s generally applied the ''[[lex loci contractus]]'' as the proper law.<ref>[[J. H. C. Morris|J H C Morris]], The Conflict of Laws, Third Edition, Stevens and Sons, London, 1984, ISBN 0-420-46890-0, p 266.</ref><ref>This approach was also generally adopted in Scotland: [[Alexander Anton|A E Anton]], ''Private International Law: A treatise from the standpoint of Scots law'', (Scottish Universities Law Institute), W Green & Son, Edinburgh, 1967, reprinted 1970, p 185. As to contract in conflict of laws in Scotland generally, see further the rest of chapter 7 ("Contract").</ref> |
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States approach the issue of [[intentionality]] from two related, but distinct, conceptual directions: |
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*[[legal liability|liability]] in which the law holds individuals responsible for the consequences of their [[action (philosophy)|actions]], and |
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*exculpability in which fundamental social policies exclude or diminish the liability that actors would have incurred in different circumstances. |
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Many states have policies which protect the young and inexperienced by insulating them from liability even though they may have voluntarily committed themselves to unwise contracts. The age at which children achieve full contractual [[capacity (law)|capacity]] varies from state to state but the principle is always the same. [[Minor (law)|Infants]] are not bound by many otherwise valid contracts, and their intention is irrelevant because of the legal incapacity imposed on them by the state of the [[domicile (law)|domicile]] (the ''[[lex domicilii]]'') or [[nationality]] (the ''[[lex patriae]]''). This recognises a set of social values that requires exculpation even though there is relevant action and consent freely given. |
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==Proper law== |
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Equally, states have an interest in protecting the normal flow of trade within their borders.{{fact|date=January 2024}} If businesses had constantly to verify the nationality or domicile of their customers and their ages, this might slow down business<ref>A E Anton, Private International Law: A treatise from the standpoint of Scots law, (Scottish Universities Law Institute), W Green & Son, Edinburgh, 1967, reprinted 1970, p 199.</ref> and, potentially, infringe privacy legislation. Hence, conflicts of public policy can emerge which complicate the choice of law decision and invite [[forum shopping]], i.e. traders will always seek to sue infants with whom they have contracts in those states which accord priority to commercial interests, while children will seek the avoidance of liability in the courts which protect their interests. This would be achieved during the [[characterisation (conflict)|characterisation]] stage by classifying the issue as [[status (law)|status]] and its incidents rather than contract because a party's status and lack of capacity would be [[in rem]]. |
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===Express selection=== |
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In England, as of 1 October 1983,<ref name=Morris1984preface>J H C Morris, The Conflict of Laws, Third Edition, Stevens and Sons, London, 1984, p vii</ref> when the parties express a clear intention in a [[Choice of law clause|choice-of-law clause]], this is generally the ''proper law''.<ref>J H C Morris, The Conflict of Laws, Third Edition, Stevens and Sons, London, 1984, ISBN 0-420-46890-0, p 270.</ref> |
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===Implied selection=== |
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In England, as of 1 October 1983,<ref name=Morris1984preface/> when the parties have not used express words, their intention may be inferred from the terms and nature of the contract, and from the general circumstances of the case.<ref>J H C Morris, The Conflict of Laws, Third Edition, Stevens and Sons, London, 1984, ISBN 0-420-46890-0, p 275.</ref> |
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===Closest and most real connection=== |
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In ''Mount Albert Borough Council v Australasian etc Assurance Society Ltd'', it was held that, in default, the court has to impute an intention by asking, as just and reasonable persons, which law the parties ought to, or would, have intended to nominate if they had thought about it when they were making the contract.<ref>Mount Albert Borough Council v Australasian etc Assurance Society Ltd [1938] AC 224 at 240. J H C Morris, The Conflict of Laws, Third Edition, Stevens and Sons, London, 1984, ISBN 0-420-46890-0, p 276.</ref> But see ''The Assunzione''.<ref>The Assunzione [1954] P 150 at 175. As to the effect this case, see J H C Morris, The Conflict of Laws, Third Edition, Stevens and Sons, London, 1984, ISBN 0-420-46890-0, p 276, footnote 60.</ref> |
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===Dépeçage=== |
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Some legal systems provide that a contract may be governed by more than one law. This concept is referred to as [[dépeçage]].<ref>J H C Morris, The Conflict of Laws, Third Edition, Stevens and Sons, London, 1984, ISBN 0-420-46890-0, p 528.</ref> |
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==References== |
==References== |
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==Further reading== |
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*Nikitas Hatzimihail. "Contracts" Preclassical Conflict of Laws. Cambridge University Press. 2021. Chapter 9.3.1. [https://books.google.co.uk/books?id=EM Page 285] et seq. |
*Nikitas Hatzimihail. "Contracts" Preclassical Conflict of Laws. Cambridge University Press. 2021. Chapter 9.3.1. [https://books.google.co.uk/books?id=EM Page 285] et seq. |
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*Wolff, "Hong Kong's Conflict of Contract Laws: Quo Vadis?" (2010) 6 Journal of Private International Law 465 |
*Wolff, "Hong Kong's Conflict of Contract Laws: Quo Vadis?" (2010) 6 Journal of Private International Law 465 |
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*Petar Sarcevic (ed). International Contracts and Conflicts of Laws: A Collection of Essays. Graham & Trotman/Martinus Nijhoff. 1990. Passim. [https://books.google.com/books?id=ckJNAQAAIAAJ Google] |
*Petar Sarcevic (ed). International Contracts and Conflicts of Laws: A Collection of Essays. Graham & Trotman/Martinus Nijhoff. 1990. Passim. [https://books.google.com/books?id=ckJNAQAAIAAJ Google] |
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*[[Geoffrey Cheshire|Geoffrey Chevalier Cheshire]]. International Contracts. Jackson, Son & Company, printers to the University. Glasgow. 1948. Passim. [https://books.google.com/books?id=VMg4AQAAIAAJ Google] |
*[[Geoffrey Cheshire|Geoffrey Chevalier Cheshire]]. International Contracts. Jackson, Son & Company, printers to the University. Glasgow. 1948. Passim. [https://books.google.com/books?id=VMg4AQAAIAAJ Google] |
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*Henri Battifol. Les Conflits des Lois en Matière des Contrats: Etude de droit international privé comparé. Recueil Sirey. Paris. 1938. |
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*Adrian Briggs. "Contracts". The Conflict of Laws. Second Edition. Oxford University Press. 2008. Chapter 5. [https://books.google.co.uk/books?id=47VGAgAAQBAJ&pg=PA153#v=onepage&q&f=false Page 153] et seq. |
*Adrian Briggs. "Contracts". The Conflict of Laws. Second Edition. Oxford University Press. 2008. Chapter 5. [https://books.google.co.uk/books?id=47VGAgAAQBAJ&pg=PA153#v=onepage&q&f=false Page 153] et seq. |
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*Christopher M V Clarkson and Jonathan Hill. "Contractual obligations". The Conflict of Laws. Fourth Edition. Oxford University Press. 2011. Chapter 4. [https://books.google.co.uk/books?id=fWOcAQAAQBAJ&pg=PA203#v=onepage&q&f=false Page 203] et seq. |
*Christopher M V Clarkson and Jonathan Hill. "Contractual obligations". The Conflict of Laws. Fourth Edition. Oxford University Press. 2011. Chapter 4. [https://books.google.co.uk/books?id=fWOcAQAAQBAJ&pg=PA203#v=onepage&q&f=false Page 203] et seq. |
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*[[A. V. Dicey|Dicey]]. "Contracts: General Rules" and "Particular Contracts". A Digest of the Law of England with Reference to the Conflict of Laws. London. 1896. Chapters 24 and 25. [https://books.google.co.uk/books?id=2KcNAAAAYAAJ&pg=PA540#v=onepage&q&f=false Page 540] et seq. |
*[[A. V. Dicey|Dicey]]. "Contracts: General Rules" and "Particular Contracts". A Digest of the Law of England with Reference to the Conflict of Laws. London. 1896. Chapters 24 and 25. [https://books.google.co.uk/books?id=2KcNAAAAYAAJ&pg=PA540#v=onepage&q&f=false Page 540] et seq. |
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*[[Joseph Story]] and [[Isaac F. Redfield|Isaac F Redfield]]. "Foreign Contracts". Commentaries on the Conflict of Laws. Sixth Edition. Little, Brown and Company. 1865. [https://books.google.co.uk/books?id=mqYNAAAAYAAJ&pg=PA290#v=onepage&q&f=false Page 290] et seq. |
*[[Joseph Story]] and [[Isaac F. Redfield|Isaac F Redfield]]. "Foreign Contracts". Commentaries on the Conflict of Laws. Sixth Edition. Little, Brown and Company. 1865. [https://books.google.co.uk/books?id=mqYNAAAAYAAJ&pg=PA290#v=onepage&q&f=false Page 290] et seq. |
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{{Authority control}} |
{{Authority control}} |
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[[Category:Conflict of laws]] |
[[Category:Conflict of laws]] |
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[[Category:Contract law]] |
[[Category:Contract law]] |
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{{contract-law-stub}} |
Latest revision as of 05:48, 30 January 2024
Conflict of laws and private international law |
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Preliminaries |
Definitional elements |
Connecting factors |
Substantive legal areas |
Enforcement |
In the conflict of laws, the validity and effect of a contract with one or more foreign law elements will be decided by reference to the so-called "proper law" of the contract.
History
In England, until the middle of the 19th century, the courts generally applied the lex loci contractus as the proper law.[1][2]
Proper law
Express selection
In England, as of 1 October 1983,[3] when the parties express a clear intention in a choice-of-law clause, this is generally the proper law.[4]
Implied selection
In England, as of 1 October 1983,[3] when the parties have not used express words, their intention may be inferred from the terms and nature of the contract, and from the general circumstances of the case.[5]
Closest and most real connection
In Mount Albert Borough Council v Australasian etc Assurance Society Ltd, it was held that, in default, the court has to impute an intention by asking, as just and reasonable persons, which law the parties ought to, or would, have intended to nominate if they had thought about it when they were making the contract.[6] But see The Assunzione.[7]
Dépeçage
Some legal systems provide that a contract may be governed by more than one law. This concept is referred to as dépeçage.[8]
References
- ^ J H C Morris, The Conflict of Laws, Third Edition, Stevens and Sons, London, 1984, ISBN 0-420-46890-0, p 266.
- ^ This approach was also generally adopted in Scotland: A E Anton, Private International Law: A treatise from the standpoint of Scots law, (Scottish Universities Law Institute), W Green & Son, Edinburgh, 1967, reprinted 1970, p 185. As to contract in conflict of laws in Scotland generally, see further the rest of chapter 7 ("Contract").
- ^ a b J H C Morris, The Conflict of Laws, Third Edition, Stevens and Sons, London, 1984, p vii
- ^ J H C Morris, The Conflict of Laws, Third Edition, Stevens and Sons, London, 1984, ISBN 0-420-46890-0, p 270.
- ^ J H C Morris, The Conflict of Laws, Third Edition, Stevens and Sons, London, 1984, ISBN 0-420-46890-0, p 275.
- ^ Mount Albert Borough Council v Australasian etc Assurance Society Ltd [1938] AC 224 at 240. J H C Morris, The Conflict of Laws, Third Edition, Stevens and Sons, London, 1984, ISBN 0-420-46890-0, p 276.
- ^ The Assunzione [1954] P 150 at 175. As to the effect this case, see J H C Morris, The Conflict of Laws, Third Edition, Stevens and Sons, London, 1984, ISBN 0-420-46890-0, p 276, footnote 60.
- ^ J H C Morris, The Conflict of Laws, Third Edition, Stevens and Sons, London, 1984, ISBN 0-420-46890-0, p 528.
Further reading
- Nikitas Hatzimihail. "Contracts" Preclassical Conflict of Laws. Cambridge University Press. 2021. Chapter 9.3.1. Page 285 et seq.
- Wolff, "Hong Kong's Conflict of Contract Laws: Quo Vadis?" (2010) 6 Journal of Private International Law 465
- Tetley and Wilkins. International Conflict of Laws: Common, Civil, and Maritime. International Shipping Publications. 1994. Page 237. See also passim. Google
- Lectures on the Conflict of Laws and International Contracts. University of Michigan Law School. 1951. Passim. Google
- Petar Sarcevic (ed). International Contracts and Conflicts of Laws: A Collection of Essays. Graham & Trotman/Martinus Nijhoff. 1990. Passim. Google
- Geoffrey Chevalier Cheshire. International Contracts. Jackson, Son & Company, printers to the University. Glasgow. 1948. Passim. Google
- Henri Battifol. Les Conflits des Lois en Matière des Contrats: Etude de droit international privé comparé. Recueil Sirey. Paris. 1938.
- Adrian Briggs. "Contracts". The Conflict of Laws. Second Edition. Oxford University Press. 2008. Chapter 5. Page 153 et seq.
- Christopher M V Clarkson and Jonathan Hill. "Contractual obligations". The Conflict of Laws. Fourth Edition. Oxford University Press. 2011. Chapter 4. Page 203 et seq.
- J H C Morris. "Contracts" The Conflict of Laws. Second Edition. Stevens and Sons. 1980. Chapter 13. Page 209 et seq.
- Dicey. "Contracts: General Rules" and "Particular Contracts". A Digest of the Law of England with Reference to the Conflict of Laws. London. 1896. Chapters 24 and 25. Page 540 et seq.
- Joseph Story and Isaac F Redfield. "Foreign Contracts". Commentaries on the Conflict of Laws. Sixth Edition. Little, Brown and Company. 1865. Page 290 et seq.