Wed. Sept. 5

contracts

Milliken v Pratt (Mass. 1878)

§ 311. Place Of Contracting The law of the forum decides as a preliminary question by the law of which state questions arising concerning the formation of a contract are to be determined, and this state is, in the Restatement of this Subject, called the "place of contracting."

Comment d. Determination of "place of contracting Comment d. Determination of "place of contracting." Under its Conflict of Laws rules, in determining the place of contracting, the forum ascertains the place in which, under the general law of Contracts, the principal event necessary to make a contract occurs. The forum at this stage of the investigation does not seek to ascertain whether there is a contract. It examines the facts of the transaction in question only so far as is necessary to determine the place of the principal event, if any, which, under the general law of Contracts, would result in a contract. Then, and not until then, does the forum refer to the law of such state to ascertain if, under that law, there is a contract, although of course there normally will be a contract unless the local law of Contracts of the state to which reference is thus made differs from the general law of Contracts as understood at the forum.

§ 347 The law of the place of contracting determines whether a promise is void, or voidable for fraud, duress, illegality or mistake or other legal or equitable defense.

§ 348 Whether a right under a contract is capable of being transferred by the owner, is determined by the law of the place of contracting.

§ 352 The formalities necessary to make an effective assignment of a right under an informal contract are determined by the law of the place of assignment.

§ 361 The law of the place of performance determines the details of the manner of performing the duty imposed by the contract.

Time and locality of performance Excuse for non-performance Place of Performance Manner of performance Time and locality of performance Excuse for non-performance Also right to damages and measure of damages

property

In re Barrie’s Estate (Iowa 1949)

§ 250. Revocation Of Will Of Land The effectiveness of an intended revocation of a will of an interest in land is determined by the law of the state where the land is.

choice of another jurisdiction’s law vs choice of another jurisdiction’s law vs. incorporation of another jurisdiction’s law

a Georgian sues her Georgia husband for negligence in Georgia state court in connection with an accident in California

Early draft of 2nd Restatement: First, land and things attached to the land are within the exclusive control of the state in which they are situated, and the officials of that state are the only ones who can lawfully deal with them physically. Since interests in immovables cannot be affected without the consent of the state of the situs, it is natural that the latter’s law should be applied by the courts of other states. The second reason is that immovables are of greatest concern to the state in which they are situated; it is therefore proper that the law of this state should be applied to them. The third reason is to be found in the demands of certainty and convenience…

is the situs state most interested in its law applying is the situs state most interested in its law applying? is it most interested in Barrie?

is the situs rule clearer?

Massachusetts (but not New Hampshire) has a law preventing wives from contracting with their husbands. X (from Massachusetts) enters into a contract in Massachusetts to convey New Hampshire property to her husband. What result?

In Illinois A (a domiciliary of Illinois) conveys land located in Iowa to B (a domiciliary of Illinois). A then dies. Under Illinois law, A’s widow retains a dower in the property. Under the law of Iowa, she does not retain a dower. Does A’s widow retain a dower or not?

§ 220. Effect Of Conveyance Of Interest In Land The effect upon interests in land of a conveyance is determined by the law of the state where the land is. § 237. Effect Of Marriage On Existing Interests In Land The effect of marriage upon interests in land owned by a spouse at the time of marriage is determined by the law of the state where the land is.

movables

wills, intestate succession? rights of spouses?

how is this in keeping with the territorial theory…?

Under Illinois law of adverse possession, one must hold onto personalty for 2 years to acquire title. Under Iowa law of adverse possession, it takes 3 years. After holding onto P's television set in Illinois for two and a half years, D moves with the set to Iowa and is sued by P there. What result?

In Illinois, A conveys to B the personalty assets of his business, which operated out of Iowa. At the time of the conveyance some trucks used in the business are in Illinois. Under the law of Illinois the conveyance is valid. Under the laws of Iowa it is not. Who owns the trucks?

Caveat: The Institute expresses no opinion whether the conveyance of an aggregate unit of movables may not be governed by the law of the place where the various items are aggregated as a unit, or that a conveyance of an aggregate unit made up of a number of units, themselves aggregates, may not be governed by the law of the place where the entire unit is managed so far as such conveyance is not contrary to the public policy of a state in which any constituent unit is.

According to the law of Illinois the window treatments in a house on Mary Barrie’s property in Iowa are not fixtures and so are personalty, not real property. Under the law of Iowa they are fixtures. An Illinois court, using the First Restatement approach, is trying to determine whether Barrie’s will is valid with respect to the window treatments. What result?

§ 208 Whether an interest in a tangible thing is classified as real or personal property is determined by the law of the state where the thing is.

domicile

White v Tennant (W.Va. 1888)

real property or personalty?

§ 15. Domicil Of Choice (1) A domicil of choice is a domicil acquired, through the exercise of his own will, by a person who is legally capable of changing his domicil. (2) To acquire a domicil of choice, a person must establish a dwelling-place with the intention of making it his home. (3) The fact of physical presence at a dwelling-place and the intention to make it a home must concur; if they do so, even for a moment, the change of domicil takes place.

  “even when the point of destination is not reached, domicile may shift in itinere, if the abandonment of the old domicile and the setting out for the new, are plainly shown.”

According to the authorities hereinbefore referred to he must of necessity have had a domicile somewhere. If he did not have one in Pennsylvania, where did he have one? The fact, that he left the Pennsylvania house, after he had moved to it with his family and goods, to spend the night, did not revive his domicile at his former residence on Day's run, because he had sold that, and left it without any purpose of returning there. By going from his new home to the house of his relatives to spend the night he certainly did not make the house thus visited his domicile; therefore, unless the, Pennsylvania house was on the evening of April 2, 1885, his domicile, he was in the anomalous position of being without a domicile anywhere, which, as we have seen, is a legal impossibility; and, that house having become his domicile, there is nothing in this case to show, that he ever did in fact change or intend to change it or to establish a domicile elsewhere.

assume that after abandoning his old house he died in W. Va assume that after abandoning his old house he died in W. Va., before ever making it to PA

- a lawsuit, brought in West Virginia, is attempting to determine whether White domiciliary of West Virginia or Pennsylvania - White lived in West Virginia until he was convicted of a federal crime in West Virginia and sent to prison in Pennsylvania – where he died - under the law of Pennsylvania, prisoners have the domicile they had before imprisoned, since Pennsylvania follows the approach that a person cannot acquire a domicil of choice by any act done under legal or physical compulsion - under West Virginia law White is domiciled in Pennsylvania, since he intended to remain in that state after release - how should the West Virginia court decide?

§ 10. Domicil By What Law Determined (1) A question of domicil as between the state of the forum and another state is determined by the law of the forum.

domicile residence nationality habitual residence

§ 121. Law Governing Validity Of Marriage Except as stated in §§ 131 and 132, a marriage is valid everywhere if the requirements of the marriage law of the state where the contract of marriage takes place are complied with.

§ 132. Marriage Declared Void By Law Of Domicil A marriage which is against the law of the state of domicil of either party, though the requirements of the law of the state of celebration have been complied with, will be invalid everywhere in the following cases: (a) polygamous marriage, (b) incestuous marriage between persons so closely related that their marriage is contrary to a strong public policy of the domicil, (c) marriage between persons of different races where such marriages are at the domicil regarded as odious, (d) marriage of a domiciliary which a statute at the domicil makes void even though celebrated in another state.

2nd Rest § 283(2) A marriage which satisfies the requirements of the state where the marriage was contracted will everywhere be recognized as valid unless it violates the strong public policy of another state which had the most significant relationship to the spouses and the marriage at the time of the marriage.

Uniform Marriage Evasion Act (adopted Massachusetts’s 1913): No marriage shall be contracted in this commonwealth by a party residing and intending to continue to reside in another jurisdiction if such marriage would be void if contracted in such other jurisdiction, and every marriage contracted in this commonwealth in violation hereof shall be null and void.

§ 134. Marriage Contrary To Public Policy If any effect of a marriage created by the law of one state is deemed by the courts of another state sufficiently offensive to the policy of the latter state, the latter state will refuse to give that effect to the marriage.

corporations

Corp incorp’ed in state A by law of state A a corp is not liable for the torts of its agents Agent of Corp commits tort in state B where corp’s are liable

contract or property?

Swank v Hufnagle Ohio woman guaranteed husband’s debt with promissory note, executed in Ohio, and backed up by security interest on Indiana land Ohio allowed woman to be surety for their husbands Indiana did not suit in Indiana to enforce security interest characterization?

Burr v Beckler in Florida, Illinois wife guaranteed husband’s debt, backed up by security interest in Illinois property Florida had prohibition on wives acting as surety Illinois didn’t suit in Illinois to enforce security interest characterization?

are Swank v Hufnagle and Burr v Beckler compatible?

Thomson v Kyle Alabama woman executed promissory note in Ala backed up by mortgage on land in Florida wives can’t be surety under Ala law they can under Florida law suit in Florida to enforce security interest characterization?

Caldwell v Gore D erected dam on La property Obstructed flow of water upstream to P’s property in Ark La had servitude of lower land to higher to receive water flow freely Ark law allowed obstruction if reasonable etc.