Brinkley v. Alt. Adoption. Adoption by native wife. Brinkley v. The Attorney General, it being assumed in that case that the lex loci was the law of Japan. The question is a particularly delicate one, and, in the present state of the law, it is sufficient to say that it would seem more reasonable that the doubt should be resolved in this way; though a marriage by the law of England would also be valid. The last point which arises in this connection is the recognition of adoption. As a general principle, the recognition of adopted children may be put upon a par with the recognition of children legitimated by subsequent marriage; and as to this the law is clear. The legitimation is recognised if it is sanctioned by the law of the domicil at the time of the child's birth-recognised, that is, for all purposes, with a possible exception only as to succession to real estate in England. The law of the domicil is to govern the question, and this probably would be construed to mean, in the case of adoption, the domicil both of the person adopting and of the person adopted. Adopted children of native orientals will be recognised as such by the English Courts, and all questions as to their rights will be determined by the law of their nation. With regard to adoption by English subjects, it is impossible so long as the adopter retains his English domicil: it is possible when he has acquired a domicil in a country whose laws allow it. But in oriental countries the domicil of British subjects is never national, and no question of adoption can therefore arise. Further, by English law the wife's nationality and domicil follow her husband's. An adoption by her, though valid by the native law, would probably not be recognised in England, even though by the native law the woman did not lose her nationality by her marriage. XIII The Effect of Foreign Furisdiction Fudgments of Consular Courts. oriental countries. IT IS inevitable that the consequences of so artificial a system as that under which foreign jurisdiction is exercised should extend beyond the actually defined limits of the system into those branches of the law wherein locality occupies a definite place. How, for example, in the law of contracts are we to indicate the The necessity for locus in order to determine the lex loci contractus and the lex loci determining the locus with regard solutionis when it is necessary to do so: or in the law of torts, in to Europeans in order to apply the maxim locus regit actum? For, to take a concrete instance, the place where a contract made in England or Singapore is to be performed may be Shanghai: or the place where a wrongful act in respect of which an action is brought in Hong Kong may be Canton. Unless Chinamen are concerned, Chinese law is in no circumstances applicable, and in the Treaty Ports there are as many laws in force as there are nationalities engaged in commerce. It is clear that in some contracts arising out of the commercial dealings with the Chinese, or where a tort is committed by a Chinaman, the rights and liabilities of the parties must be governed by Chinese law. To such cases the ordinary principles which determine what law is applicable will apply as in the case of any other foreign country; and if these principles point to Chinese law, it must be ascertained in the usual way, by the evidence of those competent to interpret it. As has been pointed out, it could not be ascertained through the Consular Court under either the British Law, or the Foreign 22 & 23 Vict.c.63. Law Ascertainment Acts. 24 & 25 Vict. c. 11. cf. pp. 95, 97. We must now ascertain therefore what the locus is in respect of Europeans in the same circumstances in which the locus is China in respect of Chinese. The question, though it must often arise in the Consular Courts, is obviously one which may arise in any other Court, British or foreign, in the world. Contracts between British subjects; and between British subjects and foreigners. General rules as contracts. Contracts. In the case of a contract made between two British subjects in Shanghai, for example, the question introduces no difficulty; the law of the place where the contract was made is the law which governs British subjects in China-the English law as established by Order in Council; if the place of performance is China, and the law of the place of performance has to be resorted to, this again is the English law; and the law of the forum, if that has to be resorted to, is the law of the Consular Court. But how are these three terms to be interpreted in the case, say, of a contract made and to be performed in Shanghai, between an Englishman and a Frenchman, or between an Englishman and a Chinese? It will be advisable in the first place to have before us a concise statement of the general law of contracts on these points. "The general rule," said Lord Mansfield, "established ex to law governing comitate et jure gentium, is that the place where the contract is made, and not where the action is brought, is to be considered in expounding and enforcing the contract. But this rule admits of an exception where the parties at the time of making the contract had a view to a different kingdom". "It is generally agreed that the law of the place where the contract is made is, prima facie, that which the parties intended, or ought to be presumed to have adopted as the footing upon which they dealt, and that such law ought therefore to prevail in the absence of circumstances indicating a different intention . . . . which intention is inferred from the subject matter and from the surrounding circumstances, so far as they are relevant to construe and determine the character of the contract". "The place of performance is necessarily in many cases the place where the obligations of the contract will have to be enforced, and hence, as well as for other reasons, has been introduced another canon of construction, to the effect that the law of the place of fulfilment of a contract determines its obligations. But this maxim, as well as the former, must of course give way to any inference that can legitimately be drawn from the character of the contract and the nature of the transaction." These quotations are taken from Lord Justice Bowen's judgment, citing Lord Mansfield and Mr. Jacobs v. Credit Justice Willes, in Jacobs v. Credit Lyonnais. Lyonnais, 12 The law as established in this case may, I think, be summarised thus. Prima facie, in some cases the lex loci contractus prevails, in others the lex loci solutionis; but in either case the prima facics may be rebutted by showing that the intention of the parties was to adopt the law of another country as the footing upon which they dealt. This obviously allows the proposition to be stated in a different way, as was in fact done in re Missouri re Missouri Co., 42 Ch. D. 321. Steamship Company. In solving the question as to what law ought to prevail, the general principle is that the rights of the parties to a contract are to be judged of by that law by which they intended to bind themselves. If the intention is not expressed or to be inferred from surrounding circumstances, it is to be presumed from other circumstances. principles. These principles are interchangeable. It is obviously im- The alternative material whether we say that a contract is to be governed by the law of the place where it was made unless the intention of the parties points to another law; or, that the law governing a contract is that law which the parties intended should govern it, and in the absence of any express intimation, or of any legitimate inference, the intention will be presumed to be in favour of the law of the place where the contract was entered into. As examples of inferences we may take a case where the contract is to be entirely performed at some place abroad the inference is that the law of that place is intended to govern; or the case of a contract of affreightment, when the inference is that the law of the flag must govern. Both of these inferences would be legitimate if no other circumstances rebutted them. In applying these principles to the case of a contract between Application of an Englishman and a Frenchman entered into and to be per- exterritorial principles to formed in Shanghai, it is useless to start with the prima facie rule contracts." that a contract is to be governed by the law of the place where it is made or to be performed, for there is no "place" which can furnish us with the necessary law. We must therefore fall back on the alternative statement of the rule, that the intention of the parties as to the law which is to govern the contract must be ascertained. It is true that in this statement of the rule there is an ultimate presumption in favour of the law of the place where the contract was entered into, and that the same difficulty arises with regard to it. But the solution of the difficulty is a practical one. The impossibility of applying the presumption makes it imperative on the Court to ascertain the intention of the parties, and to draw the most legitimate inferences possible in the circumstances. Inferences must be drawn from facts which would possibly not in ordinary circumstances be considered as entitled to so much weight. They assume indeed a greater importance because of the peculiar circumstances of the case, which are in fact well known to both parties who enter into the contract. Such facts as these might become all-important instead of material only: the language in which the contract is made, the form of it, the nationality of the person for whom the contract is to be performed, the part of the Settlement where it is to be performed, as in the case of a bill accepted payable at a French bank: and so on. And so with regard to the form of the contract, the same considerations would appear to settle the difficulties which arise. If the intention of the parties is that the contract, entered into in Shanghai, should be governed by the law of France, for example, it would be considered as a French contract, and the form of it would have to be in accordance with French law. This seems to be the result of Mr. Justice Pearson's decision in re Marseilles Extension Railway Company, Smallpage's case. In this connexion of course the application of the Statute of Frauds needs consideration. It was held in Leroux v. Brown, that s. 4 of the Statute of Frauds, which requires certain contracts to be in writing, is a mere rule of procedure, and therefore a question appertaining to the lex fori. Without going into the difficulties suggested by this rule, it seems clear that an action. cannot be maintained in the Consular Court on a parol agreement to which an Englishman is a party, which is not to be performed within one year, although it is valid by the law of the other party's nationality.* Assuming this decision to be good law, the result is to create an exception to the statement already made, that as all disputes are referred for settlement to the Court of the defendant's nationality, each man's conduct in this mixed community must be governed by his own law. In cases of contract entered into *The adverse comments which have been made upon this decision are considered in my book on "Foreign Judgments," at p. 200. |