of the old Roman obligation distinctively applies: "Will you do this thing?" "I will do this thing." What we then have to consider is, what is the seat of the obligation in such cases. assumed at domicil performed, unless otherwise 1 § 410. (a.) Where a Person assumes an Obligation at his own Obligation Domicil. When there is no other place of performance indicated, the law of that domicil controls the conthere to be tract so far as concerns the mode of its performance.2 Thus where a domiciled citizen of Massachusetts approvided. plied to a domiciled citizen of New York for a loan, which the latter agreed to give, and wrote to the former to send him a note and mortgage of the estate, which was done, and the money sent, it was held that the seat of the contract was in Massachusetts. This law, however, is the law of such domicil at the time of the transaction; not the law of any subsequent domicil to which the party may remove. A., in Philadelphia, makes a promissory note in which no place of payment is specified, and which is therefore payable in Philadelphia. On this hypothesis, the obligation is governed as to payment by the law in force in Philadelphia. But, subsequently to the assumption of the obligation, A. shifts his domicil to New York. He does not, however, change by this the law applicable to his obligation entered into in Philadelphia. The latter law, i. e. that in force in Philadelphia, continues to adhere to the obligation, even though A., between assumption and performance, has changed his domicil, or though he has died, and his estate, which is responsible for his obligations, has descended to representatives who are domiciled in another state. Or, to go back to a case in Ulpian: A woman, domiciled at Rome, borrowed money in that city. After her death, her estate descended to her daughter, 1 See Maine's Ancient Law, 4th ed. by the lex loci contractus, see Fiore, (1870) p. 328. Op. cit. pp. 673 et seq. 2 Supra, § 401; Bank v. Colby, 12 N. H. 520; Dyke v. Erie R. R. 45 N. Y. 113; Potter v. Tallman, 35 Barb. (N. Y.) 182; Pratt v. Walbridge, 16 Ind. 147; Boyd v. Ellis, 11 Iowa, 97; Hyatt v. Bank, 8 Bush, 193. series of French rulings, that the effect of such contract is determinable For a 8 Pine v. Smith, 11 Gray (Mass.), See § 402; Goddard v. Sawyer, 9 Allen (Mass.), 78. 38. Potter v. Tallman, 35 Barbour, 182; Short v. Trabue, 4 Metc. (Ky.) 299; Savigny, § 370, citing to this point L. 19, pr. de jud. (5, 1); L. 2, C. de jurisdict. (3, 13); BethmannHollweg, Versuche, No. 1, p. 24. who was domiciled in one of the provinces. In this case, the special forum (judicati actio), carrying with it to the case the particular local law, was ruled still to remain at Rome, because, says Ulpian, the obligor had herself selected Rome for this purpose.1 when a place of ance, performother than contract, the place of appears in § 411. The mere dating at a particular place is not conclusive.2 Even as to negotiable paper, evidence, so far as concerns Dating at accommodation parties, may be received to contest particular place not such date. Thus, in a case in Virginia, the evidence conclusive; though was that a paper was signed in blank in Virginia, and otherwise sent to Maryland to be filled up there. It was so filled up there, and at the same time and place was indorsed by the payee to the holders, for value, the note being in fact for the accommodation of the payee. This was held to be a Maryland contract, to be governed by the Maryland law, though the note was headed W., a place in Virginia. But when a place of performance, not that of the obligor's domicil, or of the solemnization of the instrument, is expressed or implied, then the law of such place of performance prevails so far as concerns the terms of performance. Thus, official bonds of navy agents are payable at Washington; and though executed at New Orleans, the domicil of the obligor, they are governed, not by the law of Louisiana, but by the common law in force at Washington." the con tract. Place of business may pre vail over domicil. § 412. (b.) When the Obligor assumes the Obligation away from his Domicil. - An obligation may be entered into in a place not the obligor's domicil; and yet in subordination to the laws of this place the obligation may have been framed. In such case, as between the law of domicil, and that of the place of solemnization, the latter is to prevail. This, according to Savigny, arises when a merchant conducts a course of business at a place where he is not domiciled, but which he makes his special residence for the purpose of such business, and in which the understanding arises that he 1 L. 45, de jud. (5, 1). 2 Whart. on Ev. § 977. Infra, SS 457-464. Fant v. Miller, 17 Gratt. 47. See other cases cited in Whart. on Ev. § 977. 4 See supra, § 401. 5 Cox v. U. S. 6 Pet. 172; Duncan v. U. S. 7 Pet. 435; U. S. v. Stephenson, 1 McLean, 462. See supra, § 403. will forward the goods he sells from this special residence; by which course, he and the party knowingly dealing with him subject the transaction to the laws of this special residence. Ulpian so states this rule, qualifying it by the exception hereafter to be noticed, that a mere transient traveller is not in this respect bound by the local laws of any place through which he may pass: . . . .“ durissimum est quotquot locis quis navigans, vel iter faciens, delatus est, tot locis se defendi. At si quo constitit, non dico jure domicilii, sed tabernulam officinam conduxit, ibique distraxit, egit: defendere se eo loci debebit."1 In such case, the forum contractus prevails, because it is in the special contemplation of the parties.2 § 413. But all this depends on the inference of mutual intent Public offi- to be drawn from circumstances. According to Savigny, this inference is in favor of the place of contract in the following case: cer's debts governed by law of place of contract. Where a public officer, whose domicil is the residence of his family in another place, remains for months at the place. of his official duties. In such case, debts incurred by him for his personal subsistence (Schulden die sich auf sein täglichen Lebensunterhalt beziehen) are subject to the law of the place where they were thus contracted, i. e. the place of his official duties. And this, whether he be an officer of the executive department or a member of the legislature. § 414. It is held, also, by Savigny, that when a person incurs Watering- debts for family purposes when at a watering-place, place debts the law of the latter place determines. But it is otherwise when debts relate to business transactions, whose consummation can only be expected at his domicil.3 governed by law of place of contract. Rule not dependent on time of § 415. Nor, in such special cases, is any longer stay required to invest the case with the law of the place than is natural under the peculiar circumstances. Thus, it is inciresidence. dent to a traveller's relations that his stay at hotels. should be only brief. He remains at such places simply in transitu. Such buildings are designed for transient accommodation. In such cases, the usage is that the traveller is to pay before leaving the house. The place of performance is hence the place where the obligation is incurred. And hence, the law of the place applies, in spite of the obligor's distinct domicil, even though his stay be only for a few hours. By Saplace of vigny delivery of goods is place of perform ance. § 416. (c.) In the Case of Commercial Travellers. In such cases a business house, which has its own well-known local seat (e. g. manufacturing establishments, insurance companies, importing houses, jobbers, publishers), sends out an agent, who may either be a member of the firm or corporation, or a clerk, to travel on its behalf, to solicit orders, and to enter into contracts for the sale of goods, or, in a particular case, for the effecting of insurances. Now, here a conflict at once springs up. Is the seat of the contract, which determines its applicatory local law, to be the place where the contract was entered into, or the place where the goods (or, in case of insurance, the policy) were received, or the place from whence they were issued? Savigny declares for the latter position.1 Two rules of the Roman law he cites to sustain his view: first, the risk of accidental loss is shifted to the vendee from the moment of the inception of the transfer; 2 and, secondly, the execution of a contract for the delivery of movables can only be compelled at the place where the goods lie. The present Prussian law is distinct to this effect. It provides that the title, and all risks as to possession, pass to the purchaser at the time the goods are forwarded to him; provided he either designates, or may be presumed tacitly to approve, the mode of forwarding.3 That in cases of insurance the law binding the insurer is that of the seat of his principal office will be hereafter seen.* § 417. It has been frequently held in this country that delivery of goods at a railway depot, directed to the vendee, So in our is such a performance as to make the law of the place own law. of such delivery decisive. In a suit in New York, in 1869, for the price of liquors sold by the plaintiff, domiciled in New York, to the defendant, domiciled in Vermont, it appeared that the 1 VIII. § 390. 2 § 3, Inst. de emp. (3, 23). Not from the moment of contract, as Savigny's rendering might imply. 3 A. L. R. i. 11, §§ 128-133. 4 Infra, § 465. 5 Infra, § 486. See Finch v. Mansfield, 98 Mass. 149; Suit v. Woodhall, 113 Mass. 391. 479 liquors were obtained on the defendant's orders, given by him in Vermont through the plaintiff's agent, who was travelling to solicit orders, but had no right to sell liquors. The orders were given at the defendant's hotel, where the price and amount were fixed, which orders the agent forwarded to the plaintiff in New York, who there filled them, and forwarded the liquors. It was held that the contract, which, if its seat were in Vermont, would be void under the Vermont statute, had its seat in New York, and under the New York law was valid. "The transaction," said Mr. Justice Bockes, "had no binding force until the order or request was filed in New York." "The property, on due delivery on the railroad or steamboat, as directed, became the property of the defendant, subject only to the plaintiff's right of stoppage in transitu." 1 Place of contract determines tion, and mode of III. WHEN LAW OF PLACE OF CONTRACT BINDS. § 418. We have already seen that while the law of place of performance determines the mode as well as the legality of performance, the interpretation of the words interpreta- of a contract, so far as they indicate the meaning of the generally parties, is usually settled by the lex loci contractus. In solemniza- other words, while the lex loci solutionis determines tion. whatever relates to the operation of the contract, the lex loci contractus determines whatever relates to the form of expression. The lex loci solutionis determines application. The lex loci contractus solves ambiguities, and, when it is the place of solemnization, determines formalities.2 Place of ratification § 418 a. As is elsewhere illustrated, a contract made in one state, to be fulfilled there, subject to ratification in another state, is, when ratified, to be interpreted by the laws of the first state.3 is place of contract. § 419. It is argued by Savigny that when by local legislation certain forms are necessary to the validity of certain contracts (e. g. registry, enrolment, acknowledgment before Place of registry may be 1 Backman v. Jenks, 55 Barb. 469; S. P. Dolan v. Green, 110 Mass. 323; Hyde v. Goodnow, 3 N. Y. 266. Supra, § 401. 2 Infra, § 433. Phillips, 1 S. C. 152. See Gilliland v. Supra, § 406; infra, § 465; Hyde v. Goodnow, 3 N. Y. 266; Hildreth v. Shepard, 65 Barb. 265; Golson v. Ebert, 52 Mo. 260. See Whart. on Agency, § 77. |