Validity and Effects of Contracts in the Conflict of Laws (Part 1)

Abstract

There is no..topic in the conflict of laws in regard to which there is greater uncertainty than that of contracts. In this country there is no agreement even regarding the fundamental principles that should govern. Elsewhere there is less dispute concerning the general principles, but much difference of view in their application to concrete situations. Under these circumstances a discussion of the question in broad outline may not be amiss. Since an inquiry into the law governing "capacity" to contract and ,the "formalities" with which a contract must be executed raises a number of special problems, it has been deemed best to omit the discussion of this phase of the subject in the present article, except in so far as it may bear upon the intention theory in general, and to restrict its scope to the intrinsic validity of contracts, and to 'their effects. The purpose of this article will have been attained if it has pointed out the difficulties in the way of finding a simple solution of the conflicts arising from the diversity of laws relating to contracts (apart from capacity and form), and if it has succeeded in suggesting, in the light of the best juristic thought of the world, some guiding principles by means of which the solution of the particular problems may be found. In this problem, as in most others arising in the conflict of laws, some light may be derived from the juristic discussions of foreign writers and from the experience of foreign nations. So far as it may serve the purpose of this article the foreign law and literature will therefore be considered.