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Conflict of Laws I. History A. England i. In England, after the Norman conquest, the royal courts purported to administer a single common law of the land, preventing recognition of conflicts within England. ii. In England, courts held as early as 1280 that they lacked power to entertain suits involving foreign acts or transactions; consequently, there was no basis for developing an international law of conflicts. iii. Eventually, Holman v. Johnson (pg. 4): a) "Every action tried here must be tried by the law of England, but the law of England says in a variety of circumstances . . . the law of the country where the cause of action arose shall govern." B. Roman Empire i. Conflict of laws was seen as essentially a problem of statutory interpretation ii. Scholars, called "statutists" divided enactments into two categories: a) (1) Real statutes: applied only within the territory of the city whose law it was b) (2) Personal statutes: followed the city's citizenry wherever they might go iii. Eventually, a third category was devised: (3) Mixed statutes iv. Ultimately, the trouble was that neither judges nor scholars could agree upon which statutes were real, which were personal, and what to do with those that were mixed. C. Dutch Maxims (Ulrich Huber's Three Maxims) i. (1) The laws of each state have force within the limits of that government and bind all subjects to it, but not beyond. ii. (2) All persons within the limits of a government. whether they live there permanently or temporarily, are deemed to be subjects thereof. iii. (3) Sovereigns will so act by way of comity that rights acquired within the limits of a government retain their force everywhere so far as they do not cause prejudice to the power or rights of such government or of its subjects. D. The United States i. Justice Joseph Story (the father of conflict of laws) in an attempt to explain the English decisions that came to the United States via the common law looked to Europe and borrowed Huber's three maxims, using them to organize and explain the seemingly chaotic common law precedents. ii. Justice Story's approach was modified by Professor Joseph Beale, who urged replacing the third maxim (that is, comity) with a notion of "vested rights." a) Joseph Beale's theory was endorsed from the bench by Justice Holmes in Slater v. Mexican Nat'l R.R. b) Beale's theory was universally adopted by courts of the United States for at least the first half of the 20th century. c) Most judges and commentators view the "traditional approach" as synonymous with Beale's "vested rights" approach
? The Traditional Approach is used in 10 jurisdictions re torts
? The Traditional Approach is used in 12 jurisdictions re contracts iii. In the late 1950s and early 1960s, Brainerd Currie developed "governmental interest analysis" 1
? Interest Analysis is used by 2 jurisdictions re torts
? Interest Analysis is used by 0 jurisdictions re contracts iv. In 1971, the ALI published the Restatement (Second) on the Law of Conflict of Laws. a) The Second Restatement was a compromise between the new and the old b) The Second Restatement retains many of the traditional rules but situates them in a flexible, policy-oriented framework c) The Second Restatement has become the majority rule
? The Second Restatement is used in 24 jurisdictions re torts
? The Second Restatement is used in 23 jurisdictions re contracts II. The Traditional Approach (followed by 10 juris re torts/12 juris re contracts) A. 3 Core Principles i. (1) Territoriality a) "[E]very nation possesses an exclusive sovereignty and jurisdiction within its own territory." Justice Story, Commentaries on the Conflict of Laws SS 18 (pg. 10)
?????Legislatures only legislate with respect to their own territory BUT such power is absolute (only they can legislate). ii. (2) Localization a) "[N]o state or nation can, by its own laws, directly affect, or bind property out of its own territory, or bind persons not resident therein, whether they are natural born subjects, or others." Story, Commentaries on the Conflict of Laws SS 20 (pg. 11)
?????The kind of dispute is localized where multiple territories have jurisdiction (e.g. tort is localized to place where injury occurred). iii. (3) Vested Rights OR Comity a) SPLIT
? (3) Vested Rights
? "The theory of the foreign suit is that, although the act complained of was subject to no laws having force in the forum, it gave rise to an obligation, an obligatio, which like other obligations, follows the person, and may be enforced wherever the person may be found." Slater v. Mexican Nat'l R.R. (pp. 12-13)
? Law's "method of creating rights is to provide that upon the happening of a certain event a right shall accrue. The creation of a right is therefore conditioned upon the happening of an event . . . . When a right has been created by law, this right itself becomes a fact . . . . A right having been created by the appropriate law, the recognition of its existence should follow everywhere." Jospeh Beale, Treatise on the Conflict of Laws SS 73 (pg. 12)
? Courts don't apply the law to a dispute, they enforce rights in a dispute.
?????If a right is vested somewhere else, it should still apply everywhere else.
? (3) Comity
? "[W]hatever force and obligation the laws of one country may have in another, depend solely upon the laws, and municipal regulations of the latter, that is to say, upon its own proper jurisprudence and polity, and upon its own 2
express or tacit consent." Story, Commentaries on the Conflict of Laws SS 23 (pg. 11)
??? ?"'[C]omity of nations' . . . is the most appropriate phrase to express the true foundation and extent of the obligation of the laws of one nation within the territories of another." Story, Commentaries on the Conflict of Laws SS 38 (pg. 12) B. Rules i. General Rules a) "[T]here can be no recovery in one state for injuries to the person sustained in another, unless the infliction of the injuries is actionable under the law of the state in which they were received." Alabama Great Southern R.R. Co. v. Carroll (pg. 6)
? This general rule of law is "subject, in certain jurisdictions, to the qualification that the infliction of the injuries would also support an action in the state where the suit is brought had they been received within that state." Carroll (pg. 6) b) "The law of the forum determines the jurisdiction of the courts, the capacity of the parties to sue or be sued, the remedies which are available to suitors and the procedure of the courts." Mertz v. Mertz (pg. 74) ii. Tort a) In tort, the law of the place of the injury is the applicable law. See Carroll (pg. 8)
? "[W]here the unlawful act is committed in one jurisdiction or state, and takes effect . . . in another jurisdiction or state, the [tort] is deemed to have been committed and is punishable in that jurisdiction or state in which the result is manifested, and not where the act was committed." Carroll (pg. 8)
?????Notwithstanding the fact that, in Carroll, the last act of negligence to complete the tort occurred in Alabama, the court applied Mississippi law as the injury itself manifested in Mississippi.
? Restatement on the Law of Conflict of Laws
? "The place of the wrong is in the state where the last event necessary to make an actor liable for an alleged tort takes place." Restatement SS 377 (pg. 14)
? (1) If the law of the place of the wrong depends upon "the application of a standard of care," that standard should be taken from the law of the "place of the actor's conduct." Restatement SS 380(2) (pg. 15)
? (2) A person required, forbidden, or privileged to act under the law of the "place of acting" should not be held liable for consequences in another state. Restatement SS 382 (pg. 15)
? "Except in the case of harm from poison, when a person sustains bodily harm, the place of the wrong is the place where the harmful force takes effect on the body . . . . The person harmed may thereafter go into another state and die from the injury . . . . The place where this last event occurs is . . . immaterial. The question is only where did the force impinge upon the his body." Restatement SS 377 Note 1 (pg. 16)
? "Where harm is done to the reputation of a person, the place of the wrong is where the defamatory statement is communicated." Restatement SS 377 Rule 3
5 (pg. 16)
? Brewster v. Boston Herald-Traveler Corp. (pg. 16): "The plaintiff is entitled to have his claims for recovery treated not globally but severally, state by state."
? BUT Keeton v. Hustler Magazine, Inc. (pg. 16) held that all damages from the multistage libel action must be sought in a single action under the "single publication rule" but left open the question whether damages would be determined under one law or many.
? BUT in Dale System, Inc. v. Time, Inc. (pg. 16), the court applied the law of the plaintiff's home state to the entire proceeding on the ground that "in cases of multi-state libel generally, the greatest harm to repute will occur in the state of domicile."
? In Bernstein v. National Broadcasting Co. (pg. 16), the court held that a cause of action for invasion of privacy depended on the law of the jurisdiction where the "plaintiff was when his feelings were wounded." b) Interspousal Immunity in Tort
?????Majority Rule: The law of the place of the wrong controls as to whether one spouse is immune from suit in tort by the other. Buckeye v. Buckeye (pg. 42)
? Minority Rule: The issue of incapacity to sue based upon family relationship is a matter of domestic relations and thus the law of the place of the domicile controls. See Hauschild v. Continental Cas. Co. (pg. 43) c) Vicarious Liability
??? ?The First Restatement characterized vicarious liability as a tort question: "When a person authorizes another to act for him in any state and the other does so act, whether he is liable for the torts of the other are determined by the law of the place of the wrong." SS 387; see also Alabama Great Southern R.R. v. Carroll; but see Levy v. Daniels' U-Drive Auto Renting Co.(applying the law of the place of the domicile as oppose to the law of the place of injury). iii. Contract a) Validity
? "The general rule is that the validity of a contract is to be determined by the law of the state in which it is made; if it is valid there, it is deemed valid everywhere, and will sustain an action in the courts of a state whose laws do not permit such a contract." Milliken v. Pratt (pg. 18)
? "Even a contract expressly prohibited by the statutes of the state in which the suit is brought, if not in itself immoral, is not necessarily nor usually deemed so invalid that the comity of the state . . . will refuse to entertain an action on such a contract . . . ." Milliken v. Pratt (pp. 18-19)
? Restatement of Conflict of Laws SS 332
? Law Governing Validity of Contract. The law of the place of contracting determines the validity and effect of a promise with respect to
? (a) capacity to make the contract;
? (b) the necessary form, if any, in which the promise must be made; 4
?(c) the mutual assent or consideration, if any, required to make a promise binding;
? (d) any other requirements for making a promise binding;
? (e) fraud, illegality, or any other circumstances which make a promise void or voidable;
? (f) except as stated in SS 358, the nature and extent of the duty for the performance of which a party becomes bound;
? (g) the time when and the place where the promise is by its terms to be performed;
? (h) the absolute or conditional character of the promise. "Place of Contracting" Rule
? Restatement of Conflict of Laws
? SS 311. Place of Contracting. The law of the forum decides as a preliminary question by the law of which state questions arising concerning the formation of a contract are to be determined, and this state is . . . called the "place of contracting."
? Comment d to SS 311
? Determination of "place of contracting." Under its Conflict of Laws rules, in determining the place of contracting, the forum ascertains the place in which, under the general law of Contracts, the principle event necessary to make a contract occurs. . . .
? Then, and not until then, does the forum refer to the law of such state to ascertain if, under the law, there is a contract, although of course there normally will be a contract unless the local law of Contracts of the state to which reference is thus made differs from the general law of Contracts as understood at the forum . . . .
? Subsequent Provisions re the "place of contracting" under the general law of Contracts
? SS 312. Formal Contract. Except as stated in SS 313 [dealing with renewal of formal contracts], when a formal contract becomes effective on delivery the place of contracting is where the delivery is made.
? SS 323. Informal Unilateral Contract. In the case of an informal unilateral contract, the place of contracting is where the event takes place which makes the promise binding.
? SS 325. Informal Bilateral Contract. In the case of an informal bilateral contract, the place of contracting is where the second promise is made in consideration of the first promise.
? SS 326. Acceptance Sent From One State to Another. When an offer for a bilateral contract is made in one state and an acceptance is sent from another state to the first state in an authorized manner the place of contracting is as follows:
? (a) if the acceptance is sent by an agent of the acceptor, the place of contracting is the state where the agent delivers it; 5
(b) if the acceptance is sent by any other means, the place of contracting is the state from which the acceptance is sent.
? Comment to SS 326
? Where acceptance is authorized to be sent by mail, the place of contracting is where the acceptance is mailed from.
? Where acceptance is authorized by telegraph, the place of contracting is the place at which the message of acceptance is received by the telegraph company for transmission.
? Where acceptance by telephone is authorized, the place of contracting is where the acceptor speaks his acceptance.
? Where a contract is formed by spoken word between two parties standing on opposite sides of a state boundary, the place of contracting is the place from which the acceptor speaks his acceptance.
? SS 326 DOES NOT apply to an offer that stipulates that actual communication of consent to the offeror is required to constitute acceptance.
? Professor Beale defined "place of contracting" as "the place in which the final act was done which made the promise or promises binding." (pg. 22)
? Professor Beale felt that the place of contracting rule was as obvious as the law of nature. (pg. 22)
?????"[I]f a person residing in [one] state signs and transmits, either by a messenger or through the post-office, to a person in another state, a written contract, which requires no special forms or solemnities in its execution, and no signature of the person to whom it is addressed, and is assented to and acted on by him there, the contract is made there . . . ." Milliken v. Pratt (pp. 19) b) Performance
? Restatement of Conflict of Laws SS 358
? Law Governing Performance. The duty for the performance of which a party to a contract is bound will be discharged by compliance with the law of the place of performance of the promise with respect to
? (a) the manner of performance;
? (b) the time and locality of performance;
? (c) the person or persons by whom or to whom performance shall be made or rendered;
? (d) the sufficiency of performance;
? (e) excuse for non-performance. c) "Nature and extent of duty for the performance" (law of place of contracting) vs. "manner" or "sufficiency" of performance (law of place of performance)
? Comment b to SS 358
?????There is . . . a practical line which is drawn in every case by the particular circumstances thereof. When the application of the law of the place of contracting would extend to the determination if the minute details of the 6
manner, method, time and sufficiency of performance so that it would be an unreasonable regulation of acts in the place of performance, the law of the place of contracting will cease to control and the law of the place of performance will be applied.
? ?? ? [W]hen the application of the law of the place of performance would extend to a regulation of the substance of the obligation to which the parties purported to bind themselves so that it would unreasonably determine the effect of an agreement made in the place of contracting, the law of the place of performance will give way to the law of the place of contracting. iv. Property a) Immovable Property
? The law of the place where the property is located is to govern as to capacity or incapacity of the testator, the forms and solemnities to give the will or testament its due attestation and effect. In re Barrie's Estate (pg. 26)
? The revocation of a will is governed by the law of state of situs of the land. In re Barrie's Estate (pg. 26)
? The effectiveness of an intended revocation of a will of an interest in land is determined by the law of the state where the land is. In re Barrie's Estate (pp. 25-26)
? Where a statute prescribes the method and acts by which a will may be revoked, no acts other than those mentioned in the statute are to operate as a revocation, no matter how clearly appears the purpose of the testator to revoke his will and his belief that such purpose has been accomplished. In re Barrie's Estate (pg. 26)
?????The situs rule is applied to a broad range of issues respecting immovable property, including the creation of original title, the validity and effect of a subsequent transfer, the creation of incumbrances or subsidiary interests, and the legal effect of such events as marriage or death. See Restatement SSSS 214-254 b) Movable Property
? Many of the questions pertaining to movable property are similarly governed by the law of the situs under the traditional theory. See Restatement SSSS 255-310
? "[I]f personal property is disposed of in a manner binding according to the law of the country where it is, that disposition is binding everywhere." Cammell v. Sewell (pg. 29)
? (1) Moveable property does not always remain in the same place; therefore, at what time should the location be determined?
? See Shanahan v. George B. Landers Constr. Co. (pg. 30) (applying the law of the place of repossession, which was also the residence of the original purchaser, where a contractor purchased a product on credit in one state, used it and then sold it to an innocent third party in a second state, of whom took it to a third state where it was ultimately repossessed)
? (2) The situs rule applies to intangible property
? (1) Succession to movables is controlled by the law of the decedent's 7
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