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Of the Conflict of Diverse Laws in Diverse Governments
(De Conflictu Legum Diversarum in Diversis Imperiis)
1. Origin and use of this question,
forensic indeed, but belonging to international rather than to civil
law.
2. The fundamental rules of the subject.
3. Acts inter vivos and mortis causa are
valid everywhere according to the law of the place where they are
done.
4. Its application to wills.
5. Its application to contracts.
6. Its application to res judicata.
7. Its application to the bringing of
actions.
8. Its application to marriage.
9. The extension of the rule to the effect
of the above transactions and even with respect to immovables.
10. Limitation of the rule of the place.
11. Another limitation and its
amplification.
12. The rule that personal qualities
impressed by a certain place have force everywhere.
13. It is manifest to what sort of
limitation such persons are subject according to the law of each
place, as will be shown by examples.
14. As regards immovables the law of the
situs must be consulted.
15. This is shown by examples from the law
of wills, contracts, and intestate succession.
1. It often happens that transactions entered into in
one place have force and effect in a different country or are judicially
decided upon in another place. It is well known, furthermore, that after
the breaking up of the provinces of the Roman Empire and the division of
the Christian world into almost innumerable nations, being not subject
one to the other, nor sharing the same mode of government, the laws of
the different nations disagree in many respects. It is not surprising
that there is nothing in the Roman law on the subject inasmuch as the
Roman dominion, covering as it did all parts of the globe and ruling the
same with a uniform law, could not give rise to a conflict of different
laws. The fundamental rules according to which this question should be
decided must be found, however, in the Roman law itself. Although the
matter belongs rather to the law of nations than to the civil law, it is
manifest that what the different nations observe among themselves
belongs to the law of nations. For the purpose of solving the subtlety
of this most intricate question, we shall lay down three maxims which
being conceded as they should be everywhere will smooth our way for the
solution of the remaining questions.
2. They are these:
(1) The laws of each
state have force within the limits of that government and bind all
subject to it, but not beyond (Digest, 2, 1, 20).
(2) All persons
within the limits of a government, whether they live there permanently
or temporarily, are deemed to be subjects thereof (Digest, 48, 22, 7,
§10, i.f.).
(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.
It follows, therefore, that the solution of the problem
must be derived not exclusively from the civil law, but from convenience
and the tacit consent of nations. Although the laws of one nation can
have no force directly with another, yet nothing could be more
inconvenient to commerce and to international usage than that
transactions valid by the law of one place should be rendered of no
effect elsewhere on account of a difference in the law. And that is the
reason for the third maxim concerning which hitherto no doubt appears to
have been entertained. As for the second maxim, some persons seem to be
of a different opinion and to deny that foreigners are subject to the
law of the place in which they act. I consider this to be true in
certain cases, as we shall see below. But the proposition that all
within the boundaries of a government are to be deemed subjects thereof
is nevertheless perfectly correct, for it is in conformity not only with
the nature of a state and the custom of subjecting all found therein to
its sovereignty, but also with the doctrine accepted by almost all
nations concerning personal arrest. Grotius, 2, c. 11, n. 5, says that
he who contracts in any particular place subjects himself as a temporary
subject to the laws of such place. For the doctrine that foreigners are
compelled to submit to mesne arrest, for no other reason than that they
are found in a place, can be justified only on the ground that the
sovereignty is deemed to extend over all found within the territory.
3. From the above the following principle is derived;
all transactions and acts, in court as well as out, whether mortis causa
or inter vivos, rightly done according to the law of any particular
place, are valid even where a different law prevails, and where, had
they been so done, they would not have been valid. On the other hand,
transactions and acts done in. violation of the law of that place, since
they are invalid from the beginning, cannot be valid anywhere; and this
is true not only as regards persons having their domicile in the place
of the contract, but also as regards those who are there for the time
being. With this exception, nevertheless, if the sovereigns of another
nation should be affected thereby with a serious inconvenience they
would not be bound to give force and effect to such acts and
transactions, according to the restriction laid down in the third maxim.
The matter is important enough to be illustrated by examples.
4. In Holland a will can be made before a notary and two
witnesses. In Frisia it is not valid unless attested by seven witnesses.
A Dutch subject made a will in Holland, in accordance with the custom of
the place, by virtue of which property situated in Frisia is demanded in
that place. The question is whether the judges of Frisia should allow
him to vindicate the property in accordance with such will. The laws of
Holland cannot bind the Frisians; therefore, according to the first
maxim, such will would not be valid in Frisia, but by the third maxim
its validity would be supported, and by that the will is sustained. But
suppose that a Frisian goes to Holland, where he makes a will in
conformity with the law of the place but contrary to Frisian law, and
returns to Frisia, where he dies. Is the will valid? It is valid
according to the second maxim, because while he was in Holland, although
only temporarily, he was bound by the law of the place; and an act,
valid from the beginning, should be valid everywhere, in accordance with
the third maxim, without distinction between movable and immovable
property, and such is the actual law. A Frisian, on the other hand,
makes in his own country a will before a notary and two witnesses. It is
carried into Holland, and a demand is made of the things found there.
Recovery is denied because the will was invalid from the beginning,
having been made contrary to the law of the place. And the same thing
would be true if a Dutch subject should make such a will in Frisia,
although it would have been valid if made in Holland; for a will made
here in this manner would be void from the beginning for the reasons
just stated.
5. What we have said about wills applies also to acts
inter vivos. Contracts made in accordance with the law of the place
where they are entered into will therefore be supported everywhere, in
court as well as out, even in those places where contracts entered into
in such manner would not be valid. And this may be affirmed not only
with respect to the form of the contract but also as regards its
substance. For example: In a certain place particular kinds of
merchandise are forbidden to be sold. If they are sold in such a place
the contract is void. But if the same merchandise were sold in some
other place, where it is not prohibited, and suit is brought on the
contract where the prohibition exists, the purchaser will be held
because the contract was valid from the beginning. If the goods are to
be delivered, however, in a place where they are prohibited, no recovery
can be had because it would be repugnant to the law and interests, of
the state prohibiting the sale of such goods, according to the
restriction contained in the third maxim. On the other hand, if the
merchandise should be sold secretly, in the place where such sale is
prohibited, the sale would not be valid from the beginning and no action
will lie no matter where it may be brought, not even to compel the
delivery; for if the purchaser should refuse to pay the price after
delivery he would be bound not so much by virtue of the agreement as by
the delivery of the thing, in so far as he would enrich himself at the
expense of another.
6. The above rule applies equally to the subject of res
judicata. A sentence pronounced in any place, or the pardon of a crime
granted by one having jurisdiction, will have effect everywhere. Nor is
it lawful for the magistrates of another state to prosecute, or suffer
to be prosecuted a second time, one who has been acquitted or pardoned
in another place, although without a sufficient reason; with this
exception again, that no evident danger or prejudice will result
therefrom to such other state, as may be seen from the following case
within our memory. Titius struck a man on the head upon Frisian
territory. The man having lost much blood through his nose, and having
eaten and drunk heartily, died during the following night. Titius
escaped into Transylvania. Being apprehended there, voluntarily as it
seems, he is tried at once and acquitted as if the man had not died from
the wound. This sentence is sent to Frisia and freedom from punishment
is asked on behalf of the person acquitted. Although the reason for the
acquittal may not have been untrue, it was nevertheless a serious
question with the court of Frisia whether it should give effect to the
foreign sentence and excuse the delinquent, although requested by the
Transylvanians; for such an escape into the neighboring country and
pretended prosecution appear to prepare the way too much for an evasion
of the Frisian law, which is the basis of the exception under the third
maxim. The same is true of judgments respecting civil matters, as is
seen from the following example which is also within our memory. A
citizen of Harlem made a contract with a citizen of Groningen, in which
he submitted himself to the judges of Groningen. Being cited to appear
before the courts of Groningen, by virtue of this submission, and not
appearing he is condemned as contumacious. Execution of the judgment
being sought from a Frisian court, it was doubted whether it ought to be
granted. The reason of doubting was that if the defendant was not found
in the territory to whose judges he had submitted, he could not be
proceeded against as contumacious, as we shall see elsewhere. Nor can
effect be given to such judgments without detriment to our jurisdiction
or prejudice to our citizens. It was granted, however, at that time,
certain magistrates being of the opinion that the Frisians could not be
allowed to inquire by what principle the judgment of Groningen had been
pronounced, but only whether it was valid according to the law of the
place. Others advance the reason that the magistrate at Harlem on
request had granted a citation in his city, which he ought rather not to
have done. Moreover, I recollect the fact that the magistrates in
Amsterdam deny the execution of judgments by default, the defendant
having been cited before a Frisian court by an order based upon
submission and having been condemned without being heard, and in my
opinion correctly, on account of the restriction contained in the third
maxim.
7. Again, the question has been raised whether if suit
is brought here upon a contract made elsewhere, and our law with respect
to the allowing or denying the action differs from that of the place
where the contract was made, which law ought to govern? For example, a
Frisian who becomes indebted in Holland, on account of merchandise sold
there at retail, is sued in Frisia after the expiration of two years. He
pleads our statute of limitations which is applicable to this class of
debts. The creditor replies that such limitation does not exist in
Holland, where the contract was made, and that it cannot be pleaded
therefore in this action. But it was otherwise decided—once in the case
of Justus Blenkenfieldt v. G. Y. and again in an action between John
Jonoliin, tailor of the Prince of Orange, v. N. B.—both before the great
fair in 1680. For the same reason, if someone should sue a debtor in
Frisia on an instrument executed before a magistrate in Holland, which
is entitled there to immediate execution, but not by common right, it
will not have the same effect here, but will require an examination of
the facts and judgment. The reason is that the statute of limitations
and execution do not pertain to the substance of the contract but to the
time and mode of bringing suit, which constitutes in itself a
quasi-contract and a separate transaction. It is recognized, therefore,
upon very good grounds, that in matters of procedure the practice of the
place where the suit is brought is observed, even with respect to a
transaction which has been entered into elsewhere. This is taught by
John à Sande, lib. 1, tit. 12, def. 5, where he states that even as
regards the execution of foreign judgments the law of the place where
the execution is asked is to be observed and not that of the place where
the judgment was rendered.
8. Marriage also is governed by the same
rules. If it is lawful in the place where it is contracted and
celebrated it is valid and effectual everywhere, with the reservation
that it does not prejudice others; to which reservation may be added
that its example is not too revolting—for example, if an incestuous
marriage in the second degree, according to the law of nations, should
happen to be allowed anywhere, which is scarcely supposable. In Frisia
it is a valid marriage if a male and female agree to marry and recognize
each other as husband and wife, although no religious ceremony was
performed. In Holland it would not constitute a marriage. The Frisian
spouses will enjoy nevertheless in Holland, without doubt, the rights of
husband and wife as regards marriage settlements and the rights of
children to inherit the property of their parents, etc. In like manner,
if an inhabitant of Brabant, who has married with papal dispensation
within the prohibited degrees, should remove to this place the marriage
will be recognized. If a Frisian, however, should go with the daughter
of his brother to Brabant and be married there the marriage would not be
recognized on his return to this place; because in this manner our law
would be evaded by the worst examples, concerning which I should like to
make the following observation: It often happens that young people under
guardianship, desiring to unite their secret desires through the bonds
of matrimony, go to eastern Frisia or to some other place where the
consent of their guardian is not necessary to marriage, according to the
provisions of the Roman law, which has been abrogated with us on this
point. They celebrate their marriage there and presently return home. I
consider this a manifest evasion of our law. Our magistrates are not
bound therefore by the law of nations to recognize and give effect to
marriages of this kind. And those especially would seem to act against
the law of nations who marry citizens of another state by its facility,
knowing such law to be contrary to their home legislation.
9. Furthermore, not only are the marriage contracts
themselves, duly entered into in a certain place, to be regarded as
binding and valid everywhere, but the rights and interests also attached
thereto by the law of the place where they were celebrated. In Holland
the spouses have a community of all their property unless they have
stipulated other-- wise in a marriage contract; this will be the effect
with respect to the property situated in Frisia, although the community
of property existing there is only of profit and loss and not of the
property itself. Therefore Frisian spouses will remain the separate
owners of their property even if it is situated in Holland. When the
spouses migrate, however, from one province into another the property
which may thereafter come to either will not be community property, but
remain their separate property; and the property which had become
community property before will retain the legal status which it had
acquired, as is laid down by John Sande, lib. 2, decis. tit. 5, def. 10,
where it is stated at the end that there was a controversy among the
doctors of the common law whether immovables situated in another country
were to be affected in like manner, in regard to which question we
believe an affirmative answer must be given. The reason for the doubt
was that the laws of one state cannot affect the integral parts of
another territory. But the answer is a twofold one. In the first place,
it is not by reason of the immediate force and operation of a foreign
law, but in consequence of the sanction of the supreme power of the
other state, that effect is given to foreign laws exercised upon
property within its territory, out of respect for the mutual convenience
of the nations, provided, however, that no prejudice is occasioned to a
sovereignty or to the rights of its citizens, which is the foundation of
the whole subject. The second answer is that it is not so much by force
of law as by the consent of the parties reciprocally communicating their
property rights to each other, by which means a change of property may
be effected, no less from matrimony than from other contracts.
10. The place, however, where a contract is entered into
is not to be considered absolutely; for if the parties had in mind the
law of another place at the time of contracting the latter will control.
"Everyone is deemed to have contracted in that place, in which he is
bound to perform." (Digest, 44, 7, 21.) Hence the place of matrimony is
not so much the place where the ceremony is performed as the place where
the contracting parties intended to live. It .happens every day that men
in Frisia, natives as well as residents, marry wives in Holland whom
they immediately bring into Frisia. And if they had such an intention at
the time of the marriage there will be, in the absence of a marriage
contract, no community of property according to the law of Holland; the
Frisian law Will be the place of the contract in this case.
11. There is in this connection a further application of
the restriction often mentioned: the effects of contracts made in a
particular place will be recognized elsewhere in accordance with the law
of the former place, if no prejudice result therefrom to the citizens of
such other country with respect to rights acquired by them, and the
sovereignty of the latter place is not bound to extend, nor can it
extend, the law of another territory so far. For example: a prior
hypothecation by agreement of movable property confers πρωτοπραξίαυ
"a right of priority," even against a third possessor according to the
law of Caesar and in Frisia, but not according to the Batavians. Hence
if someone should proceed against a third party in Holland by virtue of
such a hypothecation he would not succeed because the rights of the
third party in the movable property cannot be destroyed by the law of
another territory. We may enlarge the rule to the following extent: if
the law of the place of contracting is contrary to the law of our state,
in which a contract is also made, inconsistent with the contract which
is entered into elsewhere, it is reasonable that we should observe our
own law rather than the foreign law. For example: in Holland matrimony
is contracted with the agreement that the wife shall not be liable for
the debts contracted by the husband alone. Although it is a private
contract it is said to be valid in Holland, to the prejudice of
creditors to whom the husband may become later indebted. In Frisia such
contracts would not be valid unless published, nor would ignorance of
this fact constitute an excuse according to the law of Caesar and
equity. The husband contracts a debt in Frisia and his wife is sued here
for one-half the amount. She pleads the marriage contract. The creditors
reply that by Frisian law the agreement is not valid because not
published, and this contention prevails with us with respect to
contracts entered into here, as I gave recently as my opinion when I was
consulted. But those who contracted in Holland, notwithstanding such
suit was brought in Frisia, were non-suited because the law of the place
of contracting came into consideration as the law of a single country
and not as that of two countries.
12. From the rules laid down at the beginning the
following maxim may also be derived: personal qualities impressed upon a
person by the law of a particular place surround and accompany him
everywhere with this effect that everywhere persons enjoy and are
subject to the law which persons of the same class enjoy and are subject
to in that other place. Hence persons who with us are under tutors or
curators, as young men, prodigals, or married women, are regarded
everywhere as persons subject to curators, and will possess and enjoy
such rights as the local law and guardianship bestow. Hence he who has
bestowed upon him the rights of a person of age in Frisia will not be
granted restitution in Holland with respect to contracts entered into
there. In the same way he who is declared a prodigal will not be bound
by contracts entered into elsewhere. Again, in some provinces persons
above the age of 21 are regarded as of age and may alienate their
immovable property and exercise other rights going with majority even in
those places where a person becomes of age only at 25, because whatever
qualities are assigned to their subjects by the laws and judgments of
any state will be given effect elsewhere, as long as no prejudice
results therefrom to the rights of such government or to its citizens.
13. There are those who interpret the effect of a
personal quality in another way. According to them he who according to
the law of a certain country is of age or is under age, a puber or
impuber, a house-son or pater familias, under guardianship or
free from guardianship, will be governed everywhere as regards the
consequence of this status by the very law which conferred such status
upon him; so that what he can do or cannot do in his own country he
ought to be allowed to do or to be prohibited from doing everywhere.
This opinion does not seem to me well founded; there would result
therefrom too great a confusion of rights, and from the laws of some
states too great a burden for their neighbors. Some examples will make
this clear. A house-son in Frisia cannot make a will. He goes into
Holland where he makes a will. The question is whether it is valid. I
think it is. At all events in Holland, by virtue of the first and second
maxims, because the laws of a state apply to all within its territory.
Nor is it just that as regards acts done within their territory the
Dutch shall put aside their own law and decide the case according to
foreign law. But it will have no validity in Frisia, in accordance with
the third maxim, because by that means nothing would be more easy for
our citizens than to evade our laws, and they might be evaded every day.
But elsewhere such a will would be valid even where by their laws a
house-son could not make a will because in such a case there would be no
evasion of the domestic law by subjects thereof and the above reason
would therefore not apply.
14. The example I have given refers to an act which was
prohibited at home on account of a personal quality. We shall give
another act allowed at home, but prohibited where it was done, decided
sometime ago by our Supreme Court: Rudolph Monsema, who was born and
lived at Groningen, when he was seventeen years and fourteen days old
went abroad to learn the business of a druggist. He made a will which he
could have made in Frisia, but at Groningen, according to Dr. Nauta, the
reporter of this decision, infants under twenty years of age are not
allowed to do so, not even at the time of their last illness, for more
than one-half their patrimony. The, young man died of the sickness,
leaving his uncle on his father's side as his heir and leaving nothing
to his aunts on his mother's side, who contended that the will was void
because it was made in violation of the law of the place. The heir urged
that a personal quality accompanies the person everywhere, and that, as
he could have made the will at home, he could make it abroad. But the
decision was given against the will, consistently with what we have
said, especially since there was no intention to evade the home law. The
decision was, however, by no means universally approved, Nauta himself
dissenting. (Decis. M. S. 134. October 27, 1643.)
15. The foundation of all this doctrine we have said and
maintained to be the subjection of all men to the laws of a country so
long as they remain therein; whence it follows that an act valid or
invalid from the beginning is also valid or invalid elsewhere. But this
observation does not apply to immovables when they are considered, not
as to their dependency upon the free disposition of the respective
owners, but as to the extent in which certain qualities are found
impressed upon them by the law of the particular country in which they
are situated; such qualities remain unaffected in such state
irrespective of what the laws of other states or the agreements of
individuals may provide to the contrary. For it is evident that the laws
applicable to such property, enacted by the state in which the immovable
property is situated, cannot be changed by such disposition without
great confusion and prejudice to the state. Hence a Frisian who owns
fields and houses in the province of Groningen cannot dispose of them by
will, because it is prohibited there to dispose of immovables by will,
for the Frisian law cannot affect property which constitutes an integral
part of another territory. But is this not opposed to what we stated
above, that if a will is validly executed according to the. law of the
place it should have effect even as to property situated elsewhere,
where it is lawful to dispose of it by will? No, because the diversity
of laws in this respect does not concern immovable property but
regulates wills. The will having been properly made, the law of the
state does not invalidate it as regards immovable property so far as no
quality impressed upon it by the law of the place is affected or
impaired. This rule applies also to contracts. Frisian immovable
property, sold in Holland in a manner prohibited by Frisian law but
allowed in Holland, is deemed lawfully sold, and this is true, not only
as regards the immovables themselves, but also with respect to things
attached to the soil, so that if corn growing in Frisia is sold in
Holland according to the lasts, as it is called, the sale is not
valid—not even in Holland—although the sale of such corn is not
forbidden there, because it is prohibited in Frisia and because it is
attached to the soil and is a part of it. The same rule applies to
intestate succession. If the decedent is the father of a family whose
property is situated in different parts of the country, the law of the
situs governs as regards immovables. But with respect to movables the
law of the place where the testator had his domicile is applied, for
which see John à Sande (lib. 4, decis. tit. VIII def. 7). These rules
are such that a fuller explanation might be given, inasmuch as writers
are not wanting who think otherwise in some particulars, and who are
mentioned by John à Sande in the decisions referred to above, to which
add Rodenburg's recent "Tract. de jure quod orit. e stat. divers.,"
which is appended to his work on the law of husband and wife.
Source: Ernest G.
Lorenzen, Huber's De Conflictu Legum, 13 Ill. L. Rev. 375, 225–42
(1919) (trans. by Lorenzen from Ulrich
Huber, Praelectionum
juris civilis, tomi tres (2d ed. 1707)).
Last updated:
November 19, 2007
© 2007 by Stephen
Clark |
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