anese woman in Japan according to the forms required by the law of the country. The marriage is valid.1

3. An Englishman and an Englishwoman domiciled in England are married in accordance with the ceremonies of the Church of England in Belgium. The solemnisation of the marriage does not follow the form required by the law of Belgium. The marriage is invalid.2

4. X and A enter in a foreign country into a contract, which is there void for want of a stamp. The contract is invalid.3

Exception 1.4 - The formal validity of a contract with regard to an immovable depends upon the lex situs (?).

Exception 2.5-A contract made in one country in accordance with the local form in respect of a movable situate in another country may possibly be invalid, if it does not comply with the special formalities (if any) required by the law of the country where the movable is situate at the time of the making of the contract (lex situs).

Comment.

The law of a country, e. g., of France, where a movable is situate may require for the validity of any contract with regard to such movable that it should be made in a particular form, e. g., be in writing or be registered. In this case it is possible, though not certain, that such a contract, though made in another country, e. g., in England, would be held by an English Court invalid if it did not conform to the formalities required by the law of France. The subject, however, is one on which there is a want of authority, and the consideration of it is complicated by the fact that a contract with regard to a movable is often not only a contract but also an assignment. It is, however, pretty certain that a contract with regard to land or immovables 7 is not valid if it does not comply with the forms, if any, required for its validity by the lex situs, and the increasing tendency of English decisions clearly is to diminish the distinction between the rules governing

1 Brinkley v. Attorney-General, 1890, 15 P. D. 76. See chap. xxvi., Rule 169,

3 Bristow v. Sequeville, 1850, 5 Ex. 275; 19 L. J. Ex. 289. Compare Alves v. Hodgson, 1797, 7 T. R. 241.

4 See pp. 517, 518, ante; Adams v. Clutterbuck, 1883, 10 Q. B. D. 403,

5 Robinson v. Bland, 1760, 2 Burr. 1077.

For meaning of "local form," see Rule 147, p. 549, ante.

See chap. xxii., p. 516, ante.

rights over immovables and the rules governing the rights over movables when situate in a foreign country.

Exception 3.- Possibly a contract made in one country but intended to operate wholly in, and to be subject to, the law of another country, may be valid, even though not made in accordance with the local form, if it be made in accordance with the form required, or allowed, by the law of the country where the contract is to operate, and subject to the law whereof it is made (?).

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Comment.

It has been suggested that "if a contract is intended by the parties thereto to be an English contract and transaction, or a "contract and transaction of any other country [than the coun"try in which it is made], it will be a good contract and enforce"able in England if it complies with the formalities required, if "so intended to be an English contract, by the law of England, "or, if so intended to be a contract of some other country, with "the formalities required by the law of such country." 1

2

This suggestion of Mr. Nelson's cannot be supported by adequate authority, but it is in itself reasonable, and falls in with the tendency of English Courts to refer every question connected with a contract to the law by which the parties intended the contract to be governed. There are, moreover, one or two cases which are best explained by admitting this possible Exception to Rule 147.8

Illustrations.

A Frenchman domiciled in France marries an Englishwoman resident in France, but domiciled in England. The marriage takes place in France. Before the marriage a settlement is executed by the parties in France of property of the woman in England. The settlement is made according to the form and in the manner required by the law of England, but not in conformity with the formalities required by the law of France. If governed by the law of France, the settlement would be void; if governed

1 See Nelson, pp. 257, 258.

2 See, e. g., Re Marseilles Extension Co. 1885, 30 Ch. D. 598; In re Missouri Steamship Co. 1889, 42 Ch. D. (C. A.) 321.

3" With regard to form, it may be that a contract for the employment of a 'ship, which has been effectually made according to the law of her flag, would "be considered valid although not completed with all the forms required by "the law of the place of the contract." Carver, Carriage by Sea, pp. 212, 213. See Van Grutten v. Digby, 1862, 31 Beav. 561; 32 L. J. Ch. 179.

by the law of England, the settlement would be valid. The settlement is valid.1

Exception 4.

- In certain cases a bill of exchange may be treated as valid, though it does not comply with the requirements, as to form, of the law of the country where the contract is made.2

(iii) Essential Validity.

RULE 148.3 The essential validity of a contract is (subject to the exceptions hereinafter mentioned) governed indirectly by the proper law of the contract.

4

Comment.

A contract, though made by persons competent to contract,5 and though formally valid, may nevertheless, on account of something in the nature of the contract itself, be wholly or partially invalid. It may, that is to say, be a contract to which, on

1 I. e., in England. Van Grutten v. Digby, 1862, 31 Beav. 561; 32 L. J. Ch. 179.

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"I hold it to be the law of this country that if a foreigner and Englishwoman make an express contract previous to marriage, and if on the faith "of that contract the marriage afterwards takes place, and if the contract "relates to the regulation of property within the jurisdiction and subject to "the laws of this country, then and in that case this Court will administer the "law on the subject as if the whole matter [including the formal validity of "the contract] were to be regulated by English law." Per Romilly, M. R., 31 Beav. p. 567.

2 See chap. xxv., Rule 160, (1) a and b (p. 602, post), and Bills of Exchange Act, 1882, s. 72. See also, Rule 144, p. 541, ante.

& Robinson v. Bland, 1760, 2 Burr. 1077; Santos v. Illidge, 1860, 8 C. B. N. S. 861 (Ex. Ch.); Lloyd v. Guibert, 1865, L. R. 1 Q. B. 115; The Gaetano, 1882, 7 P. D. (C. A.) 137 ; Chartered Bank of India v. Netherlands Co. 1882, 9 Q. B. D. 118; 1883, 10 Q. B. D. (C. A.) 521; Jacobs v. Crédit Lyonnais, 1884, 12 Q. B. D. (C. A.) 589; In re Missouri Steamship Co. 1889, 42 Ch. D. (C. A.) 321. The August, [1891] P. 328; Hamlyn v. Talisker Distillery, [1894] A. C. 202.

Compare Westlake, pp. 258, 259; Nelson, pp. 261-266; Foote, pp. 364–375. Rule 148 agrees, I think, in substance with the view of Westlake and Nelson, but not with that of Foote. See App., Note 12, What is the Law determining the Essential Validity of a Contract?

For the meaning of "proper law of a contract," see Rule 143, p. 540, ante; and see Rule 149, p. 563, post, and Sub-Rules thereto, pp. 567–569, post.

See Rule 146, p. 543, ante.

6 See Rule 147, p. 549, ante.

account of its terms or of its nature, the law refuses to give effect. It then lacks "essential" or "material" validity.1

This defect may arise from the contract being strictly unlawful, i. e., from its being one which the law actually forbids; such, under the law of England, is a contract for the promotion of the slave trade, or a contract which, as being tainted with champerty or maintenance, tends to pervert the due course of justice. The defect, again, may arise from the contract being one which, though not strictly forbidden, is made void or voidable by law; such, under the law of England, is a gratuitous promise, when not made under seal, and such is a contract in restraint of trade.

The laws, however, of different countries differ as to the contracts which they render invalid. Thus a contract by an attorney to conduct an action on the terms of sharing the damages (if any) which are recovered, though void under the law of England,3 may be perfectly valid under the law of a foreign country, and a gratuitous promise, though as a rule void under the law of England, is legally binding under the law of many foreign countries.

When, therefore, a contract contains any foreign element (i. e., whenever there is a possible choice of law), the question may arise, What is the law which governs the material validity of the contract? The reply to this inquiry is admittedly open to some doubt, but the answer to be drawn from the reported decisions of English Courts is (it is submitted) given in Rule 148. The essential validity of a contract is, subject to very wide exceptions, indirectly at any rate, determined by the proper law of the contract, that is, by the law or laws to which the parties when contracting intended, or may fairly be presumed to have intended, to submit themselves. The same conclusion may be put in a different shape, and be expressed in terms more nearly corresponding with the language used by English judges. When the question arises whether a given contract, or part of a given contract, made in one country, e. g., England, and to be performed wholly or partially in another, e. g., France, is or is not valid, our Courts are accustomed to consider whether the contract is an "English contract "5 or a "French contract." If it is an "English con

1 The same sort of invalidity may, of course, exist in the case of instruments which are not contracts, e. g., wills.

2 Pollock, Contracts, 6th ed., p. 319.

3 Grell v. Levy, 1864, 16 C. B. N. s. 73.

ante.

For the meaning of "proper law of the contract," see Rule 143, p. 540,

5 It is usual and convenient to describe a contract as the contract of the country which supplies its proper law. Thus an "English contract" means a

tract," they hold that its validity is in general governed by the law of England; if it is a "French contract," they hold that its validity is in general governed by the law of France. But the answer to the question whether a given agreement is to be considered an English contract or a French contract, though in the eyes of English judges it does not depend exclusively upon any one circumstance (e. g., the place where the contract is made, or the place where the contract is to be performed),1 does depend upon the intention of the parties as to the law by which the contract is to be governed, or, in other words, upon the proper law of the contract.2

Considerations limiting effect of Rule. This statement, that the proper law of a contract determines its material validity, must be taken subject to the following limitations:

First. The intention which determines the proper law, and therefore in general3 the validity, of a contract, is the intention of the parties (exhibited usually by their conduct and the nature of the agreement) actually and in fact to contract with reference to the law of a given country, e. g., England.

This intention is a quite different thing from the intention, which in the absence of fraud, or the like, must always exist, that a contract shall be valid; it is a different thing also from the intention that a contract made in fact under the law of one country shall as to its validity be governed by the law of some other country. This is clearly a result which cannot be effected by the will of the parties.

Secondly. The "proper law" of a contract is, in a great number of instances, the law of the country where the contract is to be performed (lex loci solutionis). The assertion, therefore, of many writers, that the essential validity of a contract is governed by the

contract which the parties intend to be governed by the law of England. A French contract" means a contract which the parties intend to be governed by the law of France.

1 See Jacobs v. Crédit Lyonnais, 1884, 12 Q. B. D. (C. A.) 589; Hamlyn v. Talisker Distillery, [1894] A. C. 202.

2 See App., Note 12, What is the Law determining the Essential Validity of a Contract?

3 See Exceptions 1-3, pp. 558-560, post, for cases where the validity of a contract does not depend upon its proper law.

4 As to the determination of the proper law of a contract, see Sub-Rules to Rule 149, pp. 567-569, post. See also, App., Note 12, What is the Law determining the Essential Validity of a Contract? A contract, be it noted, may, as to some of its terms, be governed by the law of one country, e. g., England, and as to others by the law of another country, e. g., Scotland. Hamlyn v. Talisker Distillery, [1894] A. C. 202.