unless nothing has been done in the execution of the unlawful purpose beyond the payment or delivery itself (and the agreement is not positively criminal or immoral?); or unless the agreement was made under such circumstances as between the parties that if otherwise lawful it would be voidable in equity at the option of the party seeking relief (a); or, in the case of an action to set aside the agreement, unless in the judgment of the Court the interests of third persons require that it should be set aside. space. solutionis 8. Where a difference of local laws is in question, the 8. Conflict lawfulness of a contract is to be determined by the law of laws in governing the substance of the contract (that is, according Lex loci to the prevailing opinion (b), the law of the place where it prevails: is to be performed, if any particular place of performance is expressed by the contract or implied in its nature, or otherwise the law of the place where the contract is made). excluded Exception 1.-An agreement entered into by a citizen unless in violation of a prohibitory law of his own state cannot in by prohiany case be enforced in any court of that state. bitory municipal Exception 2.-An agreement contrary to common prin- law of the ciples of justice or morality, or to the interests of the state, fort cannot in any case be enforced. forum: or unless the agree ment is contrary to What we here have to do with is in truth a fragment of cont a much larger subject, namely the consideration of the common local law governing obligations in general (c). (a) This form of expression is not positively warranted by the authorities, but is submitted as fairly representing the result. (b) Though in English cases there are strong dicta in favour of the place where the contract is made: Westlake, 234, 237, and per Erle, C. J., Branley v. S. E. R. Co. 12 C. B. N. S. at p. 72: "As a general rule, the lex loci contractus governs in deciding whether there was ille- (c) For the treatment of it in justice or interests of the State. As to the The main proposition is well established, and it would first excep- be idle to attempt in this place any abridgment or re tion. As to the second exception. statement of what is said upon it by writers on Private International Law. The first exception is a simple one. The municipal laws of a particular state, especially laws of a prohibitory kind, are as a rule directed only to things done within its jurisdiction. But a particular law may positively forbid the subjects of the state to undertake some particular class of transactions in any part of the world and where such a law exists, the courts of that state must give effect to it. A foreigner cannot sue in an English court on a contract made with a British subject, and itself lawful at the place where it was made, if it is such that British subjects are forbidden by Act of Parliament to make it anywhere (a). It may be doubted whether such a contract would be recognized even by the courts of the state where it was made, unless the prohibition were of so hostile or restrictive a character as between the two states (e.g. if the rulers of a people skilled in a particular industry should forbid them to exercise or teach that industry abroad) as not to fall within the ordinary principles of comity. The authorities already cited (p. 267 above) as to marriages within the prohibited degrees contracted abroad by British subjects may also be usefully consulted as illustrating this topic. The second exception is by no means free from difficulties touching its real meaning and extent (b). There is no doubt that an agreement will not necessarily, though it will generally, be enforced if lawful according to its proper local law. The reasons for which the court may be enforced here, notwithstanding (a) Santos v. Illidge, in Ex. Ch. 8 C. B. N. S. at p. 874, 29 L. J. C. P. at p. 350, per Blackburn, J. (b) "Whether an action can be supported in England on a contract which is void by the law of England, but valid by the law of the country where the matter is transacted, is a great question": per Wilmot, J. Robinson v. Bland, 2 Burr. 1083. nevertheless refuse to enforce it have been variously expressed by judges and text-writers, and sometimes in very wide language. tions con common nations, or foreign family relations, cognized. It may be taken for granted that the courts of a civilized Transac state cannot give effect to rights alleged to be valid by trary to some local law, but arising from a transaction plainly principles repugnant to the ius gentium in its proper sense-the of civilized principles of law and morality common to civilized nations. founded on In other words, a local law cannot be recognized, though a wholly otherwise it would be the proper law to look to, if it is in system of derogation of all civilized laws. This indeed seems a fundamental assumption in the administration of justice, can't be rein whatever forum and by whatever procedure, rather than a specific proposition of either municipal or international law. Likewise it is clear that no court can be bound to enforce rights arising under a system of law so different from its own, and so unlike anything it is accustomed to, that not only its administrative means, but the legal conceptions which are the foundation of its procedure, and its legal habit of mind (a), so to speak, are wholly unfitted to deal with them. For this reason the English Divorce Court cannot entertain a suit founded on a Mormon marriage. Apart from the question whether such marriages would be regarded by our courts as immoral iure gentium (b), the matrimonial law of England is wholly inapplicable to polygamy, and the attempt to apply it would lead to manifest absurdities (c). Practically these difficulties can hardly arise except as to rights derived from family relations. One can hardly imagine them in the proper region of contracts. (a) In German one might speak without any strangeness of the Rechtsbewusstsein of the Court. (b) A conclusion which would not imply any offence to the Queen's Hindu and Mahometan subjects, or be inconsistent with our administration of native law in British India. The immemorial institu? (c) Hyde v. Hyde & Woodmansee, of law not But oppoAgain, there are sundry judicial observations to be found sition to municipal which go to the further extent of saying that no court will principles enforce anything contrary to the particular views of justice enough. morality or policy whereon its own municipal jurisprudence is founded. And this doctrine is supported by the general acceptance of text-writers, which in this department of law must needs count for more than in any other, owing to its comparative poverty in decisive authorities. But a Contract test question is to be found in the treatment of rights slaves arising out of slavery by the courts of a free country: enforced in and for England at least the decision of the Exchequer for sale of Santos v. Illidge. Chamber in Santos v. Illidge (a) has given such an answer to it as makes the prevailing opinion of the books untenable. Slavery is as repugnant to the principles of English law as anything can well be which is so far admitted by any other civilized system that any serious question of the conflict of laws can arise upon it. There is no doubt that neither the status of slavery nor any personal right of the master or duty of the slave incident thereto can exist in England (b), or within the protection of English law (c). But it long remained uncertain how an English court would deal with a contract concerning slaves which was lawful in the country where it was made and to be performed. Passing over earlier and indecisive authorities (d), we find Lord Mansfield assuming that a contract for the sale of a slave may be good here (e). On the other hand Best, J. thought no action "founded upon a right arising out of slavery" would be maintainable in the municipal courts of this country (f). But in Santos v. (a) 8 C. B. N. S. 861, 29 L. J. (b) Sommersett's ca. 20 St. T. 1. occupation of territorial waters, case. (e) 20 St. T. 79. (f) Forbes v. Cochrane, 2 B. & C. at p. 468. To same effect Story § 259, in spite of American authority being adverse. Illidge (a) a Brazilian sued an English firm trading in Brazil for the non-delivery of slaves under a contract for the sale of them in that country, which was valid by Brazilian law. Both in the C. P. and in the Ex. Ch. the only question discussed was whether the sale was or was not under the circumstances made illegal by the operation of the statutes against slave trading: and in the result the majority of the Ex. Ch. held that it was not. It was not even contended that at common law the Court must regard a contract for the sale of slaves as so repugnant to English principles of justice that, wherever made, it could not be enforced in England. Nor can it be suggested that the point was overlooked, for it appears to have been marked for argument: perhaps it is a matter for regret that it was not insisted upon, and an express decision obtained upon it but as it is, it now seems impossible to say that purely municipal views of right and wrong can prevail against the recognition of a foreign law. Moreover, apart from this decision, the cases in which the dicta relied upon for the wider doctrine have occurred have in fact been almost always determined on considerations of local law, and in particular of the law of the place where the contract was to be performed. cases with doctrine. Thus in Robinson v. Bland (b) the plaintiff sued (1) Earlier upon a bill of exchange drawn upon England to secure considered money won at play in France: (2) for money won at play reference in France: (3) for money lent for play at the same time to the and place. As to the bill, it was held to be an English general bill; for the contract was to be performed by payment in England, and therefore to be governed by English law. For the money won, it could not have been recovered in a French court of justice (c), and so quacunque via could not be sued for here; but as to the money lent, the loan (a) See note (a) p. 358. (b) 2 Burr. 1077. (c) Nor, under the circumstances, in the marshal's court of honour which then existed; but it seems the Court would in any case have |