ACTS.

PART III. the jurisdiction of any contract wherever made (with an exception in favour of persons domiciled or resident in Scotland CAP. VIII. or Ireland). The restrictions arising from the rules of venue Law of the are abolished altogether.

Contract.

p. 350.

p. 353.

Capacity

lex loci.

A foreign tribunal is regarded by the English tribunals as having jurisdiction to entertain an action based on contract against any person who is domiciled (perhaps only resident) and present within its territorial limits.

Notwithstanding the abolition of venue, actions for the possession of or property in foreign immovables will not, it would seem, be now entertained any more than they could have been in the Court of Chancery under the old practice. The mere fact, however, that a contract relates to foreign immovables will not restrain an English Court from dealing with it; and the Court of Chancery will of course indirectly affect foreign immovables by acting in personam, as heretofore.

(ii.) Law by which the Contract is Governed.—The lex contractus has always been an ambiguous term, which jurists have interpreted either as the lex loci celebrationis or solutionis, the law of the place where the contract was entered into, or of that where it was to be performed, according to the tendency of their peculiar views. A little consideration will show that, assuming that the parties entering into the contract are full of capacity to do so by every law, and that no law is transgressed or intended to be transgressed by the subject-matter of their agreement, their will is, or should be, absolutely unfettered. They should, in theory, be able to contract themselves out of or into any law they please, and the only question for a tribunal called upon to enforce the contract should be, By what law did the parties intend that their rights should be defined and governed? (a) According to this reasoning, the intention of the parties should be deferred to when interpreting and enforcing a contract in all respects except two-the question of their capacity to contract, and the question of the legality of that for which they have contracted. An examination of the cases in detail will show how far these theoretical principles have been adopted.

(a) Capacity to contract. With regard to the capacity to governed by contract, which is generally regarded as the natural consequence of adult age, it has been said above (b) that the English authorities are still discordant. The only express decision in

(a) See, e.g., Hamlyn v. Talisber Distillery (1894), A. C. 202; Spurrier v. La Cloche (1902), A. C. 446; Jacobs v. Crédit Lyonnais 12 Q. B. D. 589, 596; and cases cited infrà, p. 396 seq. (b) Supra, p. 73 seq.

ACTS.

CAP. VIII.

Capacity to contract.

respect of a mercantile or ordinary contract has been that of PART III. Lord Eldon at Nisi Prius (a) in favour of the lex loci celebrationis, though Lord Stowell seems to have inclined in the same direction, (b) and Sir Cresswell Cresswell in a more modern case used general language to the like effect.(c) On such a matter the question of intention can obviously have no weight, and the limit of age, which the English law has imposed for the benefit and protection of its own subjects, ought surely to be conclusive within the limits of its jurisdiction. It would clearly be inequitable, for example, that a domiciled subject of Prussia or of some other continental State which regards legal majority as postponed until the age of twenty-five, should attempt to evade the performance of a contract entered into in England when he was twenty-four, by the plea of infancy. The reverse case of an Englishman at the age of twenty-four making a contract in Prussia, and afterwards repudiating it on the same plea, has not occurred; but the other party to the contract, who would almost inevitably be Prussian by nationality or domicil, would necessarily be taken to know his own laws; and, though he might complain that he had been defrauded, could not deny that the fraud ought to have been foreseen. It is of course possible to imagine the case of two Englishmen transiently present in a country whose law regarded them as infants, although both had passed the English limit of twenty-one years, and there entering into a contract in ignorance or in contempt. of the provisions of the lex loci. No English Court has been called upon to decide upon the validity of a plea of infancy offered under such circumstances, but it is difficult to think that it would be allowed to prevail.

Notwithstanding these considerations and authorities, a recent Capacitydictum of the Court of Appeal in the case of Sottomayor v. De lex domicilii. Barros (d) has unsettled the whole subject, if, indeed, it has not gone further, and established the right of the lex domicilii to decide all questions of capacity for every purpose. Sottomayor v. De Barros was a case which turned upon the so-called capaeity of two domiciled Portuguese, who, being first cousins, were forbidden to marry by Portuguese law, to contract marriage in England; and the Court of Appeal held that the law of Portugal must prevail. It had been decided by Sir R. Phillimore in the (a) Male v. Roberts, 3 Esp. 163. (b) Ruding v. Smith, 2 Hagg. Cons. 389. (c) Sinonin v. Maillac, 2 Sw. & Tr. 67.

(d) Sottomayor v. De Barros, L. R. 3 P. D. 1. The language of Lord Halsbury in Cooper v. Cooper (13 A. C. 88) is to the same effect; but in that case there was no conflict between the lex loci, and the lex domicilii, the contract having been entered into in the country of the domicil. See comments on this case ante chap. iii.

ACTS.

PART III Court below, following the stricter precedents of English law, that the law of England, the place where the contract of marCAP. VIII. riage was entered into, had been satisfied, and that the marriage Capacity to was consequently valid. The case, however, was one in which contract. considerations of natural humanity and pity called for a dissolution of the union, and the Court of Appeal, consisting of James, Baggallay, and Cotton, L.JJ., reversed his decision. There appears to have been no argument on the question of capacity generally, nor is it considered in the judgment with reference to anything but marriage, but the judgment does state it to be " a well-recognised principle of law" that the question of personal capacity to enter into any contract is to be decided by the law of domicil. How far this dictum can be regarded as applicable to that incapacity which arises from minority it may be difficult to determine; but if, with regard to that incapacity it is "a well-recognised principle of law" that the law of domicil is to exclude the law of the place of contract, it has become so since Story wrote, (a) and since Lord Eldon sat at Nisi Prius.(b) It is in truth an error to regard the so-called contract of characteris marriage as something to be governed by the ordinary rules which the law of contract embodies; and the capacity to enter into the marriage contract may be regarded quite logically as entirely distinct from that capacity to contract, in the ordinary sense of the word, to which the dictum of Lord Eldon in Male v. Roberts referred. The question of the capacity of a man and woman to marry, and of the consequent validity of their marriage, is one which essentially concerns the law of their domicil, because it is in the country of the matrimonial domicil that they intend to spend their married life. This is a necessary conclusion, because, if they intend to spend their married life in any other place, and have married in any place in which they are not domiciled, they have, in fact, quitted their domicil without an animus revertendi, and lost it or changed it for another. And if the acquisition of a new domicil has not been so complete as to divest them of the old, then, in the eye of the

Contract of marriage

tics of.

(a) Story, § 103; Burge, For. Law. i. c. 4, p. 132; Westlake, Priv. Int. Law, § 401; Male v. Roberts, 3 Esp. 163; Sinonin v. Maillac, 2 Sw. & Tr. 67; Ruding v. Smith, 2 Hagg. Cons. 389.

(b) It may be desirable to quote the language of Hannen, J., with reference to this dictum, as some justification of the attempt in the text to criticise the judgment of the Court of Appeal in Sottomayor v. De Barros: "It is of course competent to the Court of Appeal to lay down a principle which, if it formed the basis of a judgment of that Court, must, unless it should be disclaimed by the House of Lords, be binding in all future cases. But I trust that I may be permitted without disrespect to say that the doctrine thus laid down has not hitherto been 'well recognised.' On the contrary, it appears to me to be a novel principle, for which, up to the present time, there has been no English authority. What authority there is seems to me to be the other way": Sottomayor v. De Barros (2), 5 P. D. 100.

law they do intend to return to the man's original domicil or home. It being, therefore, clear that the country of the matrimonial domicil must be taken as the place where the man and woman intend to spend their married life, it follows that the law of that country, and of no other, is the law to which the validity, legality, or morality of their marriage is a matter of concern.(a) It is true that this argument, if stretched, would almost go to the length of excluding the law of the place of celebration with respect to the forms and solemnities of the ceremony; but it will be shown hereafter (b) that these matters are universally referred to the lex loci celebrationis, for the purpose, if for no other, of securing that the formalities necessary to bind the parties shall be duly performed in the sight of the only law which has at the moment of celebration the right to control them. Further, all that the principle of the interest of the law of the matrimonial domicil is cited for here, is to show that there is at any rate one important distinction between the considerations applicable to the so-called contract of marriage, and a contract in the ordinary commercial sense. The only marriage contract which belongs to this latter class is the marriage contract by which husband and wife dispose of their rights in each other's property, a subject which has already been treated of.(c) And there is another distinction between contracts of commerce and contracts of marriage, closely connected with the former one, and arising out of it. It is true that husband and wife enter into an agreement, just as vendor and purchaser do, by which they mutually bind themselves to do something in consideration of the mutual promises then made, but there the analogy ends. The fulfilment or non-fulfilment of the promise of vendor and purchaser, for example, is a matter which is of no public interest whatever; and that either party, on making default, should plead such defences as infancy or the Statute of Limitations is an evil by which no one is legally or even morally wronged but the other party to the agreement. The public, or society (by whichever name the same thing is called), suffers no injury at all, except in the sense that an injury to the individual is an injury to the State, and is therefore prevented, as far as possible, by the law. On the other hand, it is of the greatest moral and social importance to the public interests of every country, for reasons which need not be specified, that those persons who live together within its

(a) "Locus matrimonii contracti non tam is est, ubi contractus nuptialis initus est, quam in quo contrahentes matrimonium exercere voluerunt."-Huber, Confl. Leg. i. tit. 3, s. 10. (b) Infrà, p. 371. (c) Ante, p. 332.

PART III.
ACTS.

CAP. VIII.

Capacity to contract.

ACTS.

contract.

PART III. limits in what they call matrimony, should be married in fact. It cannot be said that the breach or repudiation of a contract CAP. VIII. within a town is a social or public evil in at all the same sense Capacity to that the illegitimate connection of the sexes is so; and, at any rate, the breach of a contract is no more a public evil in the place where it is broken than in the place where it was made, in the frequent cases where the contracting parties are not both resident or even present in the place of performance. The crowning anomaly which results from the attempt to regard marriage as a contract in the legal sense of the term is to be found in the fact that it is a contract, if a contract at all, for the breach of which no action can lie, and no damages be recovered.(a)

Ruding v.
Smith.

The considerations urged above are perhaps the most obvious reasons why the principles which the Court of Appeal have decided in Sottomayor v. De Barros(b) are proper to decide the question of the capacity of the parties to a marriage, should not be extended, as some passages of the judgment in that case seem to imply they might be, to the question of the capacity of the parties to a commercial contract. What the capacity to marry, or to marry a particular person, really is, will be best seen by reviewing the decisions on the subject, of which Sottomayor v. De Barros is the last.

Capacity to The first case of any importance in which the question of marry-cases the capacity of the parties to a marriage appears to have arisen in an English court was that of Ruding v. Smith, (c) argued in the Consistory Court of London before Lord Stowell in 1821. The marriage in this case had been celebrated at the Cape of Good Hope, by the chaplain of the British forces then in occupation of the colony, between British subjects, whose domicil must be assumed to have been British also. The Dutch law at that time was the only established law in the colony, and its continuance had been formally sanctioned, so far as the inhabitants were concerned, by the capitulation. Two objections were taken to the marriage, though scarcely distinguished in the argument-first, that the mere formalities required by the Dutch law as the lex loci celebrationis had not been complied with; and,.secondly, that the parties were not, according to the same law, of an age at which a marriage could be contracted at all without the consent of parents and guardians, which had not been obtained. Lord Stowell held that the English law was to prevail on both points, on the exceptional (a) The breach of a promise to marry is obviously a different thing. (b) L. R. 3 P. D. 1. (c) 2 Hagg. Cons. 371..