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 iure gentium. In Quarrier v. Colston (e) 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) (f), but by the law of England. These cases do show, however, that the English law against gaming is not considered to be founded on 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 (g). In Hope v. Hope (h) an agreement made between a husband and wife, British subjects domiciled in France, provided for two things which made the agreement void (e) 1 Ph. 147. (f) The local law might conceivably, 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. (g) 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. (h) 8 D. M. G. 731; per Knight Bruce, L. J. at p. 740; per Turner, L. J. at p. 743. 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 (i) 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 (k). 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 (1). ments As for agreements contrary to the public interests of the As to state in whose courts they are sued upon, it is obvious agreethat the courts must refuse to enforce them without con- against public sidering any foreign law. The like rule applies to the interest of class of agreements in aid of hostilities against a friendly state. state of which we have already spoken. In practice, (i) 16 C. B. N. S. 73. (7) See judgment of Williams, J. Conflict of laws in time. 9. Where performance be comes unlawful, contract dissolved. 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 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 as to the conflict of laws 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 inception is made unlawful by any subsequent event, the contract is thereby dissolved (m). Explanation. Where the performance is subsequently forbidden by a foreign law, it is deemed to have become not unlawful but impossible (n). This rule does not call for any discussion. It is admitted as certain in Atkinson v. Ritchie (o), and is suffi (m) Atkinson v. Ritchie, 10 East, 530; Esposito v. Bowden, p. 279, supra. (n) Barker v. Hodgson, 3 M. & S. 267; Jacobs v. Crédit Lyonnais, C. A. 12 Q. B. D. 589. (0) See note (m), ante. ciently illustrated by the modern case of Esposito v. Bowden (o), of which some account has already been given. It applies to negative as well as to affirmative promises. "It would be absurd to suppose then an action should lie against parties for doing that which the legislature has said they shall be obliged to do" (p). To the qualification we shall have to return in the following chapter on Impossibility. 10. Otherwise the validity of a contract is generally 10. Otherdetermined by the law as it existed at the date of the at date of contract. wise law agreement governs. of its This is a wider rule than those we have already stated, as 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 (q). 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 (). It does not seem certain, however, that Qu. when agreement the converse proposition would always hold good. Perhaps made in the parties might be entitled to the benefit of a subsequent ignorance change in the law if their actual intention in making the illegality, contract was not unlawful. The question may be put as follows on an imaginary afterwards case, which the facts of Waugh v. Morris (s) show to be lawful. quite 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 (0) See note (m), p. 346. (P) Wynn v. Shropshire Union Rys. & Canal Co. 5 Ex. 420, 440. (9) Sav. Syst. § 392 (8. 435). (r) See Boyce v. Tabb, 18 Wallace (Sup. Ct. U. S.) 546; supra, p. 271. (s) L. R. 8 Q. B. 202; supra, p. 330. and performance becomes conditional on for an affirmative answer, and the analogy of Waugh v. Morris (t), where the court looked to the actual knowledge and intention of the parties at the time of the conContract tract, is also in its favour. Apart from this a contract which provides for something known to the parties to be not lawful at the time being done in the event, and only in the event, of its being made lawful, is free from objection and valid as a conditional contract (u): unless, indeed, the thing were of such a kind that its becoming lawful could not be properly or seriously contemplated (x). perform ance becoming lawful. General results as to know ledge of parties. It may 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 (y): 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. 6. 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 per (t) L. R. 8 Q. B. 202. (u) 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. 235. (r) Cp. D. 18. 1. de cont. empt. 34 § 2 (Paulus). Liberum hominem scientes emere non possumus; sed nec talis emptio aut stipulatio admittenda est: сит servus erit, quamvis dixerimus, futuras res emi posse; nec enim fas est eiusmodi casus exspectare. (y) A strong illustration of this will be found in Wilkinson v. Loudonsack, 3 M. & S. 117. (2) Jones v. North, 19 Eq. 426. |