such too, according to this Law, is the obligation of accepting the office of tutor.

This class of obligations is distinguished in principle from those which arise—

II. From the personal act of the individual, as these acts may be of two kinds, lawful or unlawful: from the personal lawful act flow the obligations (engagemens) called quasi Contrats; from the unlawful intentional act termed délit, and the unlawful unintentional act termed quasi délit, flows the obligation of repairing the injury to the individuals, with or without the punishment of the wrongdoer by the State.

APPENDIX TO CHAPTER XXXII.

"The term Obligation is used by the Roman Jurists, and by Pothier, in the preliminary article to his treatise on Obligations, as denoting, in its proper and confined sense, every legal tie which imposes the necessity of doing or abstaining from doing any act; and as distinguished from imperfect obligations, such as charity and gratitude, which impose a general duty, but do not confer any particular right; as well as from natural obligations, which, although they have a definite object, and are binding in conscience, cannot be enforced by legal remedy. English lawyers, however, generally use the word obligation in a more strict and technical sense, namely, as importing only one particular species of contracts, that is, Bonds; and they adopt the term 'Contract' when they wish to convey the more extensive idea of the responsibility which results from the voluntary engagement of one individual to another, as distinguished from that class of liabilities which originates in torts or wrongs unconnected with agreement. In the language of our Law, therefore, the term Contract comprises, in its full and more liberal signification, every description of agreement, obligation, or legal tie, whereby one party binds himself, or becomes bound, expressly or impliedly, to another, to pay a sum of money, or to do or omit to do a certain act; but in its more familiar sense it is most frequently applied to agreements not under seal. The term agreement, on the contrary, is rarely used amongst us, except in relation to contracts not under seal; and this is evidently its proper use; for, if considered in its strict and more critical meaning, it clearly imports a reciprocity of obligation; and in that point of view it does not include specialties, which in general require no mutuality of stipulation. The word promise, again, is used to denote the mere engagement of a person, without regard to the consideration for it, or the corresponding duty of the party to whom it is made.

"It is now, however, very material to consider what particular meaning is generally attached to these various terms. The essential distinctions between the different kinds of contracts constitute a much more important subject of inquiry. These distinctions are clearly ascertained; and, as they assign to each class of contracts attributes and consequences of the most marked character, they demand a

cursory notice before we discuss in detail the proper subject-matter of this work, viz. contracts not under seal.*

"Contracts, or obligations ex-contractu, are of three descriptions, and they may be classed, with reference to their respective orders or degrees of superiority, as follows: 1. Contracts of Record; 2. Specialties; 3. Simple Contracts."

* Chitty (Jun.) on Contracts (by Russell), ed. 1857, p. 1.

CHAPTER XXXIII.

OBLIGATIONS-CONFLICT OF LAWS.

DCXXII. THE foregoing sketch of the leading principles of the Law governing Obligations adopted by the chief countries of the civilised world has shown, that amid much general similarity there are not unimportant points of difference between them.

We are now led to consider what rules International Comity requires to be adopted, in those cases in which one and the same Obligation is, in some of the stages from its inception to its fulfilment, subjected to the jurisdiction of different countries possessing different municipal Laws upon the subject.

It is proposed to examine the question, first, with respect to (A) THE FORM, and, secondly, with respect to (B) THE SUBSTANCE of an obligation.

DCXXIII. First, then, we have to enquire which Law, in an apparent or real conflict of Laws, should govern THE FORM; and the prosecution of this enquiry will perhaps be best conducted by observing the following order:

1. To consider what are the true principles derived from the Reason of the Thing, having especial regard to the expression of that Reason in the general usage of civilised states (droit coutumier général-allgemeines Gewohnheitsrecht).

2. What is the doctrine relating to this subject of the conflict of Laws in the jurisprudence of ancient Rome.

I. What are the express provisions of Modern Codes. 4. What are the rules to be deduced from the decisions of

the tribunals in England and the United States of North America.

DCXXIV. The following general observations appear equally applicable to all the foregoing categories:

a. The distinction between the Law applicable to the form and the substance of the Obligation is recognised in all these categories.

B. The distinction between obligations juris gentium" and juris privati is recognised in all these categories.

7. The conflict of Laws may ensue from two causes, either from a collision between different Laws on the same subject in the same territory, or from the collision of different Laws in different territories on the same subject (a). In the first instance, the conflict arises from the change of the Law itself, as where a later abrogates or repeals an earlier Law. In the second instance, the conflict arises from a change in the condition of the facts or the person, by which they fall under the dominion of different Laws.

DCXXV. First, then, what are the true principles derived from the Reason of the Thing, and how has that reason been expressed in the usage of civilised states (b)?

The true theory of the subject would seem to require that the form of the contract should be regulated by the Law of the place of its fulfilment or execution.

But as in practice it often happens that the place of fulfilment is far removed from the place of the origin of the Contract, as it may be difficult to know and even impossible (c) to follow the forms prescribed by the Law of the place of fulfilment in the place of the origin,—the general usage

(a) Savigny, R. R. viii. (5), s. 344.

Örtliche Gränzen der Herrschaft der Rechtsregeln: Zeitliche Gränzen der Herrschaft.

(b) Savigny, VIII. s. 381. Bar iv. Das Obligationenrecht.

(c) E.g. The Prussian Law requires a testament to be made through the intervention of a Court of Justice. A Prussian dying in France or England, therefore, must die intestate, if he happen not to have made his will before he entered into either of these states,