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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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==Incapacity through age== |
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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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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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==References== |
==References== |
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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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Revision as of 07:38, 28 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.
References
- 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
- 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.