with referer ce to the general doctrine. play in France: (2) for money won at play in France: (3) for money lent for play at the same time and place. As to the bill, it was held to be an English 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 (a), and so quacunque via could not be sued for here; but as to the money lent, the loan was lawful in France and therefore recoverable here. Wilmot, J. said that an action could be maintained in some countries by a courtesan for the price of her prostitution, but certainly would not be allowed in England, though the cause of action arose in one of those countries. Probably no such local law now exists. But if it did, and if it were attempted to enforce it in our courts, we could appeal, not to our own municipal notions of morality, but to the Roman law as expressing the common and continuous understanding of civilized nations. Such a bargain is immoral jure gentium. In Quarrier v. Colston (b) it was held that money lent by one English subject to another for gaming in a foreign country where such gaming was not unlawful might be recovered in England. This, as well as the foregoing case, is not inconsistent with the rule that the law of the place of performance is to be followed. It must be taken, no doubt, that the parties contemplated payment in England. Then, what says the law of England? Money lent for an unlawful use cannot be recovered. Then, was this money lent for an unlawful use? That must be determined by the law existing at the time and place at which the money was to be used in play. That law not being shown to prohibit such a use of it, there was no unlawful purpose in the loan, and there was a good cause of action, not merely by the local law (which in fact was not before the Court) (c), but by the law of England. These cases do show, however, that the English law against gaming is not considered to be founded on (a) Nor, under the circumstances, in the marshal's court of honour which then existed; but it seems the Court would in any case have declined to take notice of an extraordinary and extra-legal jurisdiction of that sort. (b) 1 Ph. 147. (c) The local law might con ceivably, without making gaming unlawful, reduce debts for money lent at play to the rank of natural obligations or debts of honour not enforceable by legal process: if the view in the text be correct, the existence of such a law would make no difference in the English Court. such high and general principles of morality that it is to override all foreign laws, or that an English court is to presume gaming to be unlawful by a foreign law (a). In Hope v. Hope (b) an agreement made between a husband and wife, British subjects domiciled in France, provided for two things which made the agreement void in an English court: the collusive conduct of a divorce suit in England, and the abandonment by the husband of the custody of his children. It is worth noting that at the time of the suit the husband was resident in England, and it does not seem clear that he had not recovered an English domicil. Knight Bruce, L. J. put his judgment partly on the ground that an important part at least of the provisions of the document was to be carried into effect in England. Turner, L. J. did say in general terms that a contract must be consistent with the laws and policy of the country where it is sought to be enforced, and he appears to have thought the provision as to the custody of the children was one that an English court must absolutely refuse to enforce, whether to be performed in England or not, and whether by a domiciled British subject or not. But this is neither required by the decision nor reconcileable with Santos v. Illidge. In Grell v. Levy (c) an agreement was made in France between an English attorney and a French subject that the attorney should recover a debt for the client in England and keep half of it. Our rules against champerty are not known to the French law: but here the agreement was to be performed in England by an officer of an English court (d). Perhaps, indeed, the English law governing the relations and mutual rights of solicitor and client may be regarded as a law of English procedure; and in that character, of course, private arrangements cannot acquire any greater power to vary it by being made abroad (e). (a) Contra Savigny, who thinks laws relating to usury and gaming must be reckoned strictly compulsory (von streng positiver, zwingender Natur)-i.e. must be applied without regard to local law by every Court within their allegiance, but are not to be regarded by any Court outside it. Syst. 8. 276. (b) 8 D. M. G. 731; per Knight Bruce, L. J. at p. 740; per Turner L. J. at p. 743. (c) 16 C. B. N. S. 73. (d) Per Erle, C. J. at p. 79. As to agree. ments against public interest of State. Conflict of laws in time. 9. Where perfor mance As for agreements contrary to the public interests of the state in whose courts they are sued upon, it is obvious that the courts must refuse to enforce them without considering any foreign law. The like rule applies to the class of agreements in aid of hostilities against a friendly state of which we have already spoken. In practice, however, an agreement of this kind is more likely than not to be unlawful everywhere. Thus an agreement made in New York to raise a loan for the insurgents in Cuba would not be lawful in England; but it would also not be lawful in New York, and for the same reason. It might possibly happen on the other hand that the United States should recognize the Cuban insurgents while they were not recognized by England; and in that case the courts of New York would regard the contract as lawful, but ours would not. It should be borne in mind that the foregoing discussion has nothing to do with the formal validity of contracts, which is governed by other rules (expressed in a general way by the maxim locus regit actum); and also that all rules of private international law depend on practical assumptions as to the conduct to be expected at the hands of civilized legislatures and tribunals. It is in theory perfectly competent to the sovereign power in any particular state to impose any restrictions, however capricious and absurd, on the action of its own municipal courts; and even to municipal courts, in the absence of any paramount directions, to pay as much or as little regard as they please to any foreign opinion or authority. 9. Where the performance of a contract lawful in its incep tion is made unlawful by any subsequent event, the contract is thereby dissolved (a). Explanation.Where the performance is subsequently forbidden by a foreign law, it is deemed to have become not unlawful, unlawful but impossible (6). becomes contract dissolved. This rule does not call for any discussion. It is admitted as certain in Atkinson v. Ritchie (a) and is sufficiently illustrated by the modern case of Esposito v. Bowden (a) of which some account has already been given. It applies to negative as well (a) Atkinson v. Ritchie, 10 East 530; Esposito v. Bowden, p. 258, (b) Barker v. Hodgson, 3 M. & S. 267. supra. as to affirmative promises. "It would be absurd to suppose that an action should lie against parties for doing that which the legislature has said they shall be obliged to do" (a). To the qualification we shall have to return in the following chapter on Impossibility. 10. Otherwise the validity of a contract is generally deter- 10. Othermined by the law as it existed at the date of the contract. wise law at date of governs. This is a wider rule than those we have already stated, as agreement it applies to the form as well as to the substance of the contract, and not only to the question of legality but to the incidents of the contract generally (b). It is needless to seek authority to show that an originally lawful contract cannot become in itself unlawful by a subsequent change in the law (c). It does not Qu. when agreement seem certain, however, that the converse proposition would made in always hold good. Perhaps the parties might be entitled to the ignorance benefit of a subsequent change in the law if their actual intention in making the contract was not unlawful. of its illegality, and perfor mance lawful. The question may be put as follows on an imaginary case, afterwards which the facts of Waugh v. Morris (d) show to be quite becomes within the bounds of possibility. A. and B. make an agreement which by reason of a state of things not known to them at the time is not lawful. That state of things ceases to exist before it comes to the knowledge of the parties and before the agreement is performed, but A. refuses to perform the agreement on the ground that it was unlawful when made. Is this agreement a contract on which B. can sue A. Justice and reason seem to call for an affirmative answer, and the analogy of Waugh v. Morris (d), where the Court looked to the actual knowledge and intention of the parties at the time of the contract, is also in its favour. Apart from this, a contract which Contract provides for something known to the parties to be not lawful condi at the time being done in the event, and only in the event, of performits being made lawful, is free from objection and valid as a conditional contract (e): unless, indeed, the thing were of such lawful. (a) Wynn v. Shropshire Union Rys. & Canal Co. 5 Ex. 420, 440. (b) Sav. Syst. § 392 (8. 435). (c) See Boyce v. Tabb, 18 Wallace (Sup. Ct. U. S.) 546; supra, p. 251. (I) L. R. 8 Q. B. 202; supra p. 301. (e) Taylor v. Chichester & Midhurst Ry. Co. L. R. 4 H. L. 628, 640, 645; cp. Mayor of Norwich v. Norfolk Ry. Co. 4 E. & B. 397, 24 L. J. Q. B. 105, supra, p. 222. tional on ance becoming General results as to knowledge of parties. a kind that its becoming lawful could not be seriously contemplated. It may perhaps be useful to collect here in a separate form the results of the foregoing discussion, so far as they show in what circumstances and to what extent the knowledge of the parties is material on the question of illegality. a. Immediate object of agreement unlawful. Knowledge of either or both parties is immaterial (a): except, perhaps, where the agreement is made in good faith and in ignorance of a state of things making it unlawful: and in this case it is submitted for the reasons above given that the agreement becomes valid if that state of things ceases to exist in time for the agreement to be lawfully performed according to the original intention. B. A. makes an agreement with B. the execution of which would involve an unlawful act on B's part (e.g. a breach of B's contract with C). If A. does not know this, there is a good contract, and A. can sue B. for a breach of it, though B. cannot be compelled to perform it or may be restrained () from performing it. (We may say if we like that B. is deemed to warrant that he can lawfully perform his contract.) The contract is voidable at A's option on the ground of fraud, if B. has falsely stated or actively concealed the facts, but not otherwise (c). If A. does know it, the agreement is void. 7. A. makes an agreement with B. who has an unlawful purpose in the matter of the agreement. If A. does not know of this purpose, there is a contract voidable at his option when he discovers it. If he does know of it, the agreement is void. Besides the catalogue of occupations &c. regulated by statutes which we have already promised, we give by way of Appendix the provisions of the Indian Contract Act on the subjects comprised in this chapter. (a) A strong illustration of this (b) Jones v. North, 19 Eq. 426. 796, 29 L. J. Q. B. 105; but one can never be quite safe in drawing any general conclusion from decision on the contract to marry. a |