1. Lecture 4 Jan. 22, 2018

2. playing with the lex loci contractus rule

3. § 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.

4. § 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.

5. § 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.

6. § 361
The law of the place of performance determines the details of the manner of performing the duty imposed by the contract.

7. property

8. In re Barrie’s Estate (Iowa 1949)

9. immovables

10. § 245. Inheritance Of Land The law of the state where the land is determines its devolution upon the death of the owner intestate. § 249. Will Of Land The validity and effect of a will of an interest in land are determined by the law of the state where the land is. § 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.

11. § 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.

12. why have situs rule for immovable?

13. 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…

14. what about the Illinois probate judgment…?

15. movables

16. wills, intestate succession? rights of spouses?

17. formalities of conveyance adverse possession

18. § 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.

19. domicile

20. White v Tennant (W.Va. 1888)

21. real property or personalty?

22. § 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.

23.   “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.”

24. 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.

25. 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

26. - 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?

27. § 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.

28. domicile residence nationality habitual residence

29. marriage

30. § 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.

31. assume… - no Obergefell v
assume… - no Obergefell v. Hodges - VA does not allow same-sex marriage - MA does - the Full Faith and Credit Clause does not require a state to recognize a marriage entered into in another state MA same-sex couple go to VA and get married valid in VA? valid in MA?

32. § 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.

33. 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.

34. VA same-sex couple get married in MA valid in VA? valid in MA?

35. 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.

36. § 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.

37. - MA same-sex couple get married in MA - travelling through VA they wish to cohabit a hotel room…

38. corporations

39. 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

40. characterization

41. Levy v. Daniels’ U-Drive (Conn. 1928)

42. interest analysis…

43. assume MA had the derivative liability rule instead of CT…

44. Venuto v Robinson (3d Cir 1941)
Robinson agreed in NC to lease his equipment to Ross Motor Lines and to take load for Ross from NC to New England
Robinson had accident in NJ
Venuto (a domiciliary of NJ) sues Ross (and Robinson) in NJ ct
NJ law allowed for derivative liability
NC law did not

45. does the characterization as contract make sense…? compare Carroll

46. is an action under respondeat superior also contractual…?

47. the tort statute of limitations is 1 year the contract statute of limitation is 6 years which applies?

48. assume the CT rule was contractual what about the MA rule…?

49. - assume that the contract between Daniels and Sack had by chance been entered into in Massachusetts rather than Conn, but the facts of the case were otherwise the same

50. was the plaintiff (Levy) a party to the contract?

51. The contract was for the “direct, sole, and exclusive benefit” of the plaintiff, who is alleged to have been injured through the tortious operation of the automobile rented by the defendant to Sack. The right of the plaintiff as a beneficiary of this contract to maintain this action is no longer an open question in this state. The contract was made for him and every other member of the public. …The assent of the beneficiary, if required, is manifested in his action upon the contract.

52. Haumschild v Continental Cas Co. (Wisc. 1959)

53. imagine California allowed liability and Wisc. refused it…

54. Emery v. Emery (Cal. 1955)

55. Haumschild: “While the appellant's counsel did not request that we overrule Buckeye v. Buckeye, supra, and the subsequent Wisconsin case dealing with this particular conflict of laws problem, he did specifically seek to have this court apply California's conflict of laws principle, that the law of the domicile is determinative of interspousal capacity to sue, to this particular case. However, to do so would violate the well recognized principle of conflict of laws that, where the substantive law of another state is applied, there necessarily must be excluded such foreign state's law of conflict of laws.”

56. renvoi désistement

57. contract or property?

58. 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?

59. 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?

60. are Swank v Hufnagle and Burr v Beckler compatible?

61. 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?

62. 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.