Conflict of laws and private international law |
---|
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.
Incapacity through age
States approach the issue of intentionality from two related, but distinct, conceptual directions:
- liability in which the law holds individuals responsible for the consequences of their actions, and
- exculpability in which fundamental social policies exclude or diminish the liability that actors would have incurred in different circumstances.
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 varies from state to state but the principle is always the same. 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 (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.
Equally, states have an interest in protecting the normal flow of trade within their borders.[citation needed] If businesses had constantly to verify the nationality or domicile of their customers and their ages, this might slow down business[1] 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 stage by classifying the issue as status and its incidents rather than contract because a party's status and lack of capacity would be in rem.
Mistake, misrepresentation, etc.
In many states, fundamental mistakes, misrepresentations and similar defects may make a contract void ab initio, i.e. the defect is so serious that it prevents an agreement from ever coming into being. If this happens, every term in the contract including the express selection of the proper law, would be unenforceable. This raises the question of whether the lex fori should operate a policy of saving the validity of contracts wherever possible. Suppose that a contract would be valid under many potentially relevant laws but not under the putative proper law, and that, until problems arose, the parties have acted in good faith on the assumption that they will be bound by the agreement, some courts might be tempted to ignore the apparent proper law and choose another that would give effect to the parties general contractual intentions.
English law
In English law, the Contracts (Applicable Law) Act 1990 formally incorporates the Convention on the Law Applicable to Contractual Obligations the "Rome Convention") opened for signature in Rome on June 19, 1980, and signed by the United Kingdom on December 7, 1981; the Convention on the Accession of the Hellenic Republic to the Rome Convention (the "Luxembourg Convention") signed by the United Kingdom in Luxembourg on April 10, 1984; and the first Protocol on the Interpretation of the Rome Convention by the European Court (the "Brussels Protocol") signed by the United Kingdom in Brussels on December 19, 1988.
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.
- ^ 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.