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acquired a domicile within the territory, by means of some formal public notice, like that of the viis et modis of the Roman civil law, without actual personal notice of the suit, cannot be reconciled with the principles of international justice. So far, indeed, as it merely affects the specific property of the absent debtor within the territory, attaching it for the benefit of a particular creditor, who is thus permitted to gain a preference by superior diligence, or for the general benefit of all the creditors who come in within a certain fixed period, and claim the benefit of a ratable distribution, such a practice may be tolerated ; and in the administration of international bankrupt law it is frequently allowed to give a preference to the attaching creditor, against the law of what is termed the locus concursûs creditorum, which is the place of the debtor's domicile.
is Where the tribunal has jurisdiction, the rule of decitinction be- sion is the law applicable to the case, whether it be the tween the rule of deci- municipal or a foreign code; but the rule of proceedsion and rule of pro- ing is generally determined by the lex fori of the place ceeding, in cases & where the suit is pending. (a) But it is not always easy ontract. to distinguish the rule of decision from the rule of proceeding. It may, however, be stated in general, that whatever belongs to the obligation of the contract is regulated by the lex domicilii, or the lex loci contractus, and whatever belongs to the remedy for enforcing the contract is regulated by the lex fori.
If the tribunal is called upon to apply to the case the law of the country where it sits, as between persons domiciled in that country, no difficulty can possibly arise. As the obligation of the contract and the remedy to enforce it are both derived from the municipal law, the rule of decision and the rule of proceeding must be sought in the same code. In other cases, it is necessary to distinguish with accuracy between the obligation and the remedy.
The obligation of the contract, then, may be said to consist of the following parts :
1. The personal capacity of the parties to contract.
(a) [Including the statutes of limitations, which are those of the country where the suit is brought, and not those of the lex loci contractus. Howard's Rep. vol. ix. p. 407, Townsend v. Jamison.]
2. The will of the parties expressed, as to the terms and conditions of the contract.
3. The external form of the contract.
The personal capacity of parties to contract depends upon those personal qualities which are annexed to their civil condition, by the municipal law of their own State, and which travel with them wherever they go, and attach to them in whatever foreign country they are temporarily resident. Such are the privileges and disabilities conferred by the lex domicilii in respect to majority and minority, marriage and divorce, sanity or lunacy, and which determine the capacity or incapacity of parties to contract, independently of the law of the place where the contract is made, or that of the place where it is sought to be enforced.
It is only those universal personal qualities, which the laws of all civilized nations concur in considering as essentially affecting the capacity to contract, which are exclusively regulated by the lex domicilii, and not those particular prohibitions or disabilities, which are arbitrary in their nature and founded upon local policy ; such as the prohibition, in some countries, of noblemen and ecclesiastics from engaging in trade and forming commercial contracts. The qualities of a major or minor, of a married or single woman, &c., are universal personal qualities, which, with all the incidents belonging to them, are ascertained by the lex domicilii, but which are also everywhere recognized as forming essential ingredients in the capacity to contract.
How far bankruptcy ought to be considered as a pri- Bankvilege or disability of this nature, and thus be restricted ruptcy. in its operation to the territory of that State under whose bankrupt code the proceedings take place, is, as already stated, a question of difficulty, in respect to which no constant and uniform usage prevails among nations. Supposing the bankrupt code of any country to form a part of the obligation of every contract made in that country with its citizens, and that every such contract is subject to the implied condition, that the debtor may be discharged from his obligation in the manner prescribed - by the bankrupt laws, it would seem, on principle, that a certifi
i Pardessus, Droit Commercial, Pt. VI. tit. 7 ch. 2, § 1.
cate of discharge ought to be effectual in the tribunals of any other State where the creditor may bring his suit. If, on the other hand, the bankrupt code merely forms a part of the remedy for a breach of the contract, it belongs to the lex fori, which cannot operate extraterritorially within the jurisdiction of any other State having the exclusive right of regulating the proceedings in its own courts of justice; still less can it have such an operation where it is a mere partial modification of the remedy, such as an exemption from arrest, and imprisonment of the debtor's person on a cessio bonorum. Such an exemption being strictly local in its nature, and to be administered, in all its details, by the tribunals of the State creating it, cannot form a law for those of any foreign State. "But if the exemption from arrest and imprisonment, instead of being merely contingent upon the failure of the debtor to perform his obligation through insolvency, enters into and forms an essential ingredient in the original contract itself, by the law of the country where it is made, it cannot be enforced in any other State by the prohibited means. Thus by the law of France, and other countries where the contrainte par corps is limited to commercial debts, an ordinary debt contracted in that country by its subjects cannot be enforced by means of personal arrest in any other State, although the lex fori may authorize imprisonment for every description of debts.
The obligation of the contract consists of the will of the par. ties, expressed as to its terms and conditions.
The interpretation of these depends, of course, upon the lex loci contractus, as do also the nature and extent of those implied conditions which are annexed to the contract by the local law or usage. Thus the rate of interest, unless fixed by the parties, is allowed by the law as damages for the detention of the debt, and the proceedings to recover these damages may strictly be considered as a part of the remedy. The rate of interest is, however, regulated by the law of the place where the contract is made, unless, indeed, it appears that the parties had in view the law of some other country. In that case, the lawful rate of inte
i Bosanquet & Puller's Rep. vol. i. p. 131. Melan v. The Duke of FitzJames.
rest of the place of payment, or to which the loan has reference, by security being taken upon property there situate, will control the lex loci contractus.1
The external form of the contract constitutes an essential part of its obligation.
This must be regulated by the law of the place of contract, which determines whether it must be in writing, or under seal, or executed with certain formalities before a notary, or other public officer, and how attested. A want of compliance with these requisites renders the contract void ab initio, and being void by the law of the place, it cannot be carried into effect in any other State. But a mere fiscal regulation does not operate extraterritorially; and therefore the want of a stamp, required by the local law to be impressed on an instrument, cannot be objected where it is sought to be enforced in the tribunals of another country.
There is an essential difference between the form of the contract and the extrinsic evidence by which the contract is to be proved. Thus the lex loci contractus may require certain contracts to be in writing, and attested in a particular manner, and a want of compliance with these forms will render them entirely void. But if these forms are actually complied with, the extrinsic evidence, by which the existence and terms of the contract are to be proved in a foreign tribunal, is regulated by the lex fori.
The most eminent public jurists concur in asserting $21. Conthe principle, that a final judgment, rendered in a per- of sonal action, in the courts of competent jurisdiction of judgments,
in personal one State, ought to have the conclusive effect of a res actions. adjudicata in every other State, wherever it is pleaded in bar of another action for the same cause.
But no sovereign is bound, unless by special compact, to execute within his dominions a judgment rendered by the tribunals of another State; and if execution be sought by suit upon the
I Kent's Comm. on American Law, vol. ii. p. 459, fifth edit. Fælix, Droit International Privé, $ 85.
? Vattel, liv. ii. ch. vii. SS 84, 85. Martens, Droit des Gens, SS 93, 94, 95. Klüber, Droit des Gens, $ 59. Deutsche Bundes Recht, $ 366.
judgment, or otherwise, the tribunal in which the suit is brought, or from which execution is sought, is, on principle, at liberty to examine into the merits of such judgment, and to give effect to it or not, as may be found just and equitable. The general comity, utility, and convenience of nations have, however, established a usage among most civilized States, by which the final judgments of foreign courts of competent jurisdiction are reciprocally carried into execution, under certain regulations and restrictions, which differ in different countries.
aw of By the law of England, the judgment of a foreign England. tribunal, of competent jurisdiction, is conclusive where the same matter comes incidentally in controversy between the same parties; and full effect is given to the exceptio rei judicata, where it is pleaded in bar of a new suit for the same cause of action. A foreign judgment is primâ facie evidence, where the party claiming the benefit of it applies to the English courts to enforce it, and it lies on the defendant to impeach the justice of it, or to show that it was irregularly obtained. If this is not shown, it is received as evidence of a debt, for which a new judgment is rendered in the English court, and execution awarded. But if it appears by the record of the proceedings, on which the original judgment was founded, that it was unjustly or fraudulently obtained, without actual personal notice to the party affected by it; or if it is clearly and unequivocally shown, by extrinsic evidence, that the judgment has manifestly proceeded upon false premises or inadequate reasons, or upon a palpable mistake of local or foreign law; it will not be enforced . by the English tribụnals.3
American. The same jurisprudence prevails in the United States law of America, in respect to judgments and decrees rendered by the tribunals of a State foreign to the Union. As between the different States of the Union itself, a judgment obtained in one State has the same credit and effect in all the other States, which it has by the laws of that State where it was
1 Kent's Comm. vol. ii. p. 119, 5th edit. 2 Felix, SS 292–311.
3 Knapp's Rep. in the Privy Council, vol. i. p. 274: Frankland v. McGusty. Barnewall & Adolphus's Rep. vol. ïi. p. 757: Novelli v. Rossi ; vol. iii. p. 951 : Becquet v. M'Carthy.