Private International Law

INTERNATIONAL LAW, PRIVATE. Private inter national law means that law which is applied to the judicial adjust ment of divergent private interests of an international character, whether between individuals or an individual and a State, as dis tinguished from the law applicable to the settlement of relations between States, which is called public international law. The court necessarily determines which State-law has to be applied, since, ex hypothesi, the persons interested or the circumstances are re lated to different States with differing systems of law which meet in competition. Hence comes the expression "conflict of law or laws" used by some writers.

Certain States which have codified most of their law have in cluded some main rules of international law, e.g., the statute intro ducing the German Civil Code, while other countries have been parties to treaties on the subject and in both classes the rules be come binding on their courts. The most prominent series of con ventions in Europe are those of The Hague, one being of Nov. 14, 1896, three of June 12, 1902 and four of July 19, 1905 select ing the rules on the validity of marriage and marriage contracts, their effects on property and status, divorce and judicial separa tion, guardianship of minors and interdicted persons, testamentary and intestate succession and parts of judicial procedure. It seems that Germany, Italy, Holland, Portugal, Rumania and Sweden are parties to all these conventions of 1902 and 1905 while Austria and Switzerland are parties to those on the validity of marriage, divorce and separation and guardianship of minors; but France and Belgium have since renounced on grounds of public order.

In Ibero-America we have the several treaties of Montevideo of 1889 signed by the republics of Argentina, Bolivia, Paraguay, Peru and Uruguay, dealing with domicil, capacity, family rights, property, juridical acts, marriage settlements, successions, pre scription, jurisdiction, commercial law, maritime law, bills of exchange, bankruptcy, etc.

Personal Law.

Great Britain did not sign any of the above Hague Conventions, and this chiefly was for the very good reason that personal law, as conceived by the signatories, means the law of the nationality, while in Great Britain and nearly all the British colonies it means the law of the domicil ; the whole basis there fore of these conventions was alien to the theory that a man's personal law by which he means and expects his rights to be governed is that of his domicil, i.e., the country in which he has established himself and with whose conception of legal relations he must be deemed to have identified himself. The opposing theory treats him as carrying about with him the law of his nationality.

"Domicil" (q.v.) primarily refers to the domicil of his father at the child's birth, known as his domicil of origin, which he can change ; but he must actually remove himself and become resident in another country, intending that to be his new home with no present intention of leaving it, so that there must be a combina tion of fact and intention. An English court judges acquisition of a new domicil without regard to the law of the place where the new abode is constituted (Casdagli v. Casdagli, 1919, A.C. 145; In re Annesley, post). The English law cannot conceive of a man without a domicil, and therefore when in doubt as to the acquisi tion or abandonment of a new one, it treats him as having still or reverting to his domicil of origin. Some foreign systems, e.g., the Argentine, when it cannot discover his domicil, treats him as domiciled where he actually is.

Renvoi.

The necessity of applying foreign law to the solution of the forensic difficulties which arise between two systems of law, one of which applies the personal law of nationality and the other that of the domicil, has given birth to the doctrine of renvoi, which chiefly concerns successions. The problem, first recognized in France in the Forgo case (Clunet, 1883, 64), may be stated as follows. When an Englishman dies domiciled in France, the French court applies to his succession the law of his nationality, that being his personal law as conceived in France, and it treats the English law, including English international law, as being that personal law of nationality, although in fact there is strictly speaking no English law for nationals. It discovers that an English court would apply the law of the deceased's domicil to the succession, that being in fact the internal law of France, with the result that the French court under the doctrine of renvoi applies the French internal law to the succession. In the case of In re Annesley, 1926, Chancery at p. 707, the court recognized and followed the French law of renvoi, but the judge suggested that the same result would follow by rejecting the same doctrine as being part of English law ; which means that if the succession was open in England instead of France, the English court would apply the French internal law as being the law of the domicil and would not enquire whether or not the French court would throw back to the internal law of England as the law of the deceased's nationality. In the result, both courts would apply the same law of succession and this solution has the virtue of simplicity, but it is not yet settled that England rejects the doctrine as being part of its own law.

While domicil formed the usual criterion in the later middle ages and onwards, it was subjected to a considerable reverse by the Civil Code of the French, commonly called the Code Na poleon, under the influence of intense national feeling, and nationality now governs France and the many nations which have followed her lead, e.g., Belgium, Germany, Holland, Italy, Spain, etc., though it is nowhere possible entirely to discard the former rule in all legal relations. England and the States and colonies which derive from her, as well as Scotland and Ireland and the United States, adhere to the domicil theory and this is the case in most Spanish-American States, chiefly for the reason that States receiving large numbers of immigrants find it the most convenient rule.

In commercial matters English courts were slow to recognize personal law and as late as Lord Eldon's time they held that the capacity of a person to contract depended on the law of the place where the contract was made. Perhaps unfortunately, this has since been discarded in dicta of the personal law, but in the United States this is not universally the case, while Dicey in his Conflict of Laws suggests that the old rule still applies to ordinary commercial contracts.

By German law, "if a foreigner in Germany enters into a legal transaction for which he is not competent or is restricted in his competency, he is to be deemed competent as to such transaction to the extent that he would be competent by German law. This, however, does not apply to transactions relating to family rights or succession or dispositions of foreign immov ables." It would seem from Pillet (Droit Int. Prive, 176) that after some vacillation the French decisions only protect con tractants on French soil in the case of fraud by a contracting foreign incapable. Guardians, tutors, curators of minors have authority from the country which appoints them, whether it be that of the domicil or the nation. There is some doubt whether in France a guardian can trade on behalf of a foreign minor (Valery, Droit Int. Prive, 893).

A British court will not entertain a petition for divorce unless the husband is domiciled within its jurisdiction; but many foreign countries, basing competence on residence, apply the national law of the parties. There is some doubt whether countries like Spain, which does not admit divorce a vinculo within its jurisdiction, will recognize the divorce of a Spanish subject by a foreign competent court. Legitimation by subsequent marriage of the parents de pends also on the personal law of the father as determined either by domicil or nationality. English law, in the absence of express contract, considers the law of the husband's domicil to govern the effect of marriage and that of a settlement of personal property; but this domicil may be a new domicil chosen to be the immediate home of the newly married, in each case known as the matrimonial domicil (Peters v. Quebec Cite, 1908, 33 Quebec Sup. Court. 361; Union Government v. Larkan, 1916, S. Africa, A.D. 212).

Personal property is for the purpose of succession treated as forming one mass located in the place where the succession is "opened," i.e., generally the domicil of the deceased. Until 1926, few countries except England and those deriving from her, caused real property to descend in a different manner from personal property. These conditions, however, have been altered by the Administration of Estates Act, 1925, real property and personalty now descending in the same manner. It is remarkable that, while property relations as between husband and wife are governed by the law of the matrimonial domicil, although this be abandoned (De Nicolls v. Curlier, 190o, A.C. p. 33), this does not apply to rights of succession, which change with change of domicil.

Lex Situs.

The law of the territory in which they are situate governs immovables in almost every particular, although English practice in the sphere of jurisdiction admits of certain personal processes such as injunction and accounting. An action for the sum of money secured by a foreign mortgage is also allowed, for the reason that the security is subsidiary to the debt, but the court will go further and even order the foreclosure of the mort gage in default of payment. This cannot often happen since in some countries, such as Ireland, foreclosure is unknown and in many colonies the right is severely restricted, while the system of conveyancing, where it does not consist in conveying the estate to the mortgagee, does not admit of foreclosure. This is neces sarily the case under the Torrens system of registration (see Burge, Colonial and Foreign Laws, v. pt. ii., ed. W. A. Bewes). By way of illustrating the principal rule, the law which, in the absence of agreement, imposes community of assets on husband and wife cannot in the Cape be evaded by a postnuptial agree ment valid in Natal where it was made (Union Government v. Larkan, supta). It may in passing be said that property given to a wife for her separate use is not within the classes of property to which community applies (De Serre v. Clarke, L.R. 18 Equity, 587) ; but this decision may be open to exceptions.

Lex Loci Actus.

The form of a document and the validity of its execution, i.e., its extrinsic qualities, are governed by the law of the place where it is executed, in the absence of any evidence to the contrary. Its intrinsic qualities, which affect the country where its performance is to take place, are controlled by the law of the latter place; where it will not be enforced if it is contra bonos mores, contrary to any positive law or public policy (see Law Quarterly Review for 1921, xxxvii. 3, 5). There also the capacity of the parties, etc., may be considered. In countries where a system of registration of documents is essential for com plete security or, as sometimes, for any operative effect, it is necessary that the document should be such as can be registered in the place where it is to take effect. This is specially so in the case of immovables. There is an exception to the general rule in the case of a will of personal property; for Lord Kingsdown's act of 1861 legalized three forms of will made by a British subject abroad besides that of his last domicil, viz., that of the place where the will is made, that of the testator's domicil at the time when the will is made, that of his domicil of origin, when in the British dominions; but the last does not apply to a will offered for proof in Great Britain. Another exception occurs in England where an instrument affecting land within the meaning of the Statute of Frauds must conform to its requirements wherever it is made (Leroux v. Brown, 1852, 12 C.B. 801). Not all nations are as strict as the English in rejecting documents in foreign form affecting immovables.

Lex Loci Contractus.

The law of the contract is generally the same thing as the law of the instrument. If they differ, an English court would enquire what is the proper law of the con tract, with a tendency to favour the place where it is to be carried out (lex loci solutionis). This again is chiefly a matter of the intrinsic qualities of the contract. The contract of marriage must usually conform to the law of the place of the marriage, but ex ceptions are allowed under such laws as the Foreign Marriage Act 1892, which, however, in the absence of treaties, are not always binding on other Powers.

The law of the practice of the court (lex Joni) naturally governs any action whether of an international character or not, and this rule includes the form and remedy. Prescription and limitation of actions are usually treated as belonging to this law, but when a right has become non-existent by the law which properly governs it, it will not be enforced anywhere else.

Foreign Judgments.

Rights which have been declared by a judgment of a competent foreign court have sometimes to be enforced in another country. In England such judgments, whether of foreign or colonial courts, are enforced by action, treating the sum of money awarded as due under the fiction of a promise to pay. Unlike the practice in many countries, no enquiry is allowed into the merits; but a defence is open on the ground of absence of jurisdiction, and since the action is on contract, defences as on contract are allowed. Declaratory judgments of rights of property are founded on territorial jurisdiction, while those of status de pend on domicil or nationality as the case may be. No exequatur is required in either case. Judgments in personam when to be enforced abroad, e.g., on contract or for a wrong, must be clothed with an order called exequatur, i.e., "let it be carried out," and then the original judgment is executed and no new judgment is pronounced, as in England. This system in a reciprocal form has been introduced into the British empire under the Administration of Justice Act 1920, and by c. 33 of the same year, reciprocal enforcement of maintenance orders (other than affiliation orders) was provided for. It is to be noticed that many countries assume greater jurisdiction than is acquiesced in by other countries, but this excessive claim is, of course, valid for internal purposes. Under the doctrine of reciprocal treatment as between States, so popular on the Continent, the foreign courts will often refuse to enforce an English judgment except in the English way, which involves a new action. (W. A. B.) BIBLIOGRAPHY.-The best authority on the history of private inter national law to the end of the 18th century is Laine, Introduction au droit international prive (2 vole., 1888). See also L. v. Bar, The The ory and Practice of Private International Law (Eng. trans. 1892) ; Bate, Notes on the Doctrine of Renvoi (1904) ; J. Westlake, A Trea tise on Private International Law (7th ed., 1925) ; A. V. Dicey, Con ilia of Laws (ed. A. B. Keith, 4th ed., 5927).

The topic under consideration is almost universally called the conflict of laws, following the usage of Judge Story's classic treatise. Since each State of the United States is from the point of view of its law independent of each other State, and since every transaction of importance has an inter-State character, occasions for the application of the principles of private inter national law are much more frequent than in England and the law has therefore been much more fully developed by the courts.

Jurisdiction.

At the outset one is met with the question of jurisdiction, that is (for this purpose) the power of a State, with or without judicial action, to create legal interests which other States will recognize and enforce. Jurisdiction may be obtained in three ways : by physical power, by legal relation and by submission.

(a) Within the territory of a nation or State there is jurisdic tion over every person or thing in it, except as such jurisdiction is prevented by some principle of public international law, such as the protection extended to ambassadors. Where, however, a thing is carried into a State by the act of God, as by a tempest, jurisdiction, at least for some purposes, is not exercised over it till the owner has a chance to remove it, and the same rule is followed where property is brought in by a wrongdoer, without the will or procurement of the owner (Edgerly v. Bush, 81 New York 599). A full jurisdiction is not exercised over a vessel tem porarily in port (Hays v. S. S. Co., 17 How. [U.S.] 596; Brown v. Duchesne, 19 How. [U.S.] 183) or over railroad cars passing through the territory (P. P. Car Co. v. Pennsylvania, 141 U.S. 18).

(b) The relation of allegiance to a nation, or of domicil within a State even though it is a division of a nation, is a ground for exercising jurisdiction. Thus, the United States may impose a tax upon its citizen (Cook v. Tait, 265 U.S. 47) and any State upon its domiciliary (Kuntz v. Davidson County, 6 Lea [Tenn.] 65) ; so a court of one of the United States may render a judg ment against its domiciliary (Henderson v. Staniford, 505 Massa chusetts (c) Submission to jurisdiction may be established by express consent of the subjected person, as by appearance in court or by accepting the terms of a contract to that effect (Grover and Baker S. M. Co. NT. Radcliffe, 137 U.S. 287). Submission may also be established by proof that the subjected person has voluntarily caused an event to happen within the State, and is thereby sub mitted to any legal consequence of the event ; or has permitted a thing in which he has property to be within the State, whereby his interest in the thing is subjected to the jurisdiction of the State.

Jurisdiction to reach by garnishment a claim due to one's debtor rests upon jurisdiction over the garnishee (Harris v. Balk, 198 U.S. 215).

Jurisdiction to grant a divorce depends upon the domicil of the spouses. Ordinarily both have the same domicil. A wife may, however, acquire a domicil separate from her husband (Williamson v. Osenton, 232 U.S. 619), and in that case neither party can obtain a legal divorce at a new domicil unless the other spouse has consented to the separate home or by his misconduct caused it, or has appeared in the proceedings (Haddock v. Haddock, 201 U.S. 562; Bonner v. Reandrew, 203 Iowa 1355).

Marriage is governed in the last analysis by the law of the domicil of the parties; but it is based upon a valid agreement of marriage, and the validity of that agreement is governed by the law of the place of marriage (Commonwealth v. Lane, 113 Massa chusetts 458). Legitimacy is governed by the law of the domicil of the parent with whom the relation is to be established, whether at birth (Moore v. Saxton, 90 Connecticut 164) or from the later time of legitimation (Scott v. Key, II Louisiana Annual 232).

Property.

All immovable property is governed in all respects by the law of the country where it is situated (Clark v. Graham, 6 Wheaton [U.S.] 577). The transfer of title to chattels inter vivos is governed by the law of the place of the chattels at the time of transfer. This title once accrued will ordinarily be recog nized in any State into which the chattels are brought (Emery v. Clough, 63 New Hampshire 552). Where, however, a mortgage or other lien on a chattel is created in one State, and all require.

ments of the law of that State are satisfied, it is held in some States that if brought into another State the lien will not be recognized unless the requirements of the second State for the recognition of such liens are satisfied (Hervey v. Rhode Island Locomotive Works, 93 U.S. 664), but the preferable and pre vailing view is otherwise (Langworthy v. Little, 12 Cushing [Mass.] 109). The administration of a trust of chattels is gov erned by the law of the State where the creator of the trust intended the trust to be managed (Greenough v. Osgood, 235 Massachusetts 235). The inheritance of movables, while gov erned in the last resort by the law of the situs, is determined by the law of the domicil of the deceased owner at the time of his death (Moultrie v. Hunt, 23 New York 394). Upon the marriage of an owner of movable property, the other spouse acquires such an interest in the property then held as is given by the law of the husband's domicil at the time of marriage (Harral v. Harral, 39 New Jersey Equity 279).

Contracts.

Capacity to enter into a contract, including a contract of marriage, is governed by the law of the place of con tracting (Milliken v. Pratt, 125 Massachusetts 374) ; and the form necessary for the validity of the contract is governed by the same law (Scudder v. Union National Bank, 91 U.S. 406). There is great difference of opinion as to what law determines whether an agreement which is in due form is legally binding. Some courts hold that this is determined by the law of the place of contract ing; some, by the law of the place of performance; some follow the English rule, and determine the validity of the contract by the law intended by the parties. The first view is the best accredited, and is likely to prevail.

Questions as to the performance or breach of a contract depend upon the law of the place of performance. Thus the acts required of sureties are those laid down at the place for the principal to perform (Cox v. U.S., 6 Peters [U.S.] 172). What constitutes payment (Graham v. Bank, 84 New York 393), the time for payment (Stebbins v. Leowolf, 3 Cushing [Mass.] 137), the allowance of days of grace on a note (Bowen v. Newell, 13 New York 29o), the proper medium of payment (Banners v. Clemens, 58 Pennsylvania 24), the rate of interest and the measure of dam ages, all depend upon the law of the place of payment. The form of protest for non-payment of a bill is also regulated by the law of the place of payment, but the necessity for notice of non-payment of a bill and the nature of the notice depend upon the law of the place where the obligation arises (Aymar v. Sheldon, 12 Wendell [N.Y.] 439). The validity of an assignment of a contract is determined by the law of the place of assignment (Miller v. Campbell, 140 New York 547).

Wrongs.

The law governing an act or its result is the law of the State where the act or resulting event took place; the State where any proximate result of an act takes place may make that event wrongful. Whether the result was a legal wrong is deter mined by the law of the place where it happened (American Banana Co. v. United Fruit Co., 213 U.S. 347) ; whether the act itself was justified is determined by the law of the State where the actor did his act.

Judgments.

A foreign judgment creates an obligation which is both recognized and enforced in another State, whether the judgment is at law or in equity, and whether it is for the plaintiff or the defendant ; and it is equally binding though a suit between the same parties with the same subject-matter was pending in the other State, and even if proceedings were first begun there (Paine v. ins. Co., I I Rhode Island 411) ; nor do mistake of law or of fact or irregularity of local practice in the foreign court affect the binding nature of a judgment. It is often said that a foreign judgment may be impeached for fraud, and indeed it may usually, like a domestic judgment, be so impeached in equity; but by the better view it cannot be so impeached at law, though this doctrine is sometimes referred to the Constitution and confined to inter State judgments (Christmas v. Russell, 5 Wallace [U.S.] 290; Gray, J., in Hilton v. Guyot, 159 U.S. 113). The judgment must be for a sum of money of ascertained amount ; if the amount is uncertain the judgment cannot be enforced; but it may be for an amount payable from time to time, like a decree for alimony, and it will then be enforced as to all overdue payments (Lynde v. Lynde, 181 U.S. 183).

A judgment for the doing of an act, except the mere payment of money, is not directly enforceable in another court, even of the same State. It is therefore impossible to enforce a foreign decree that an act be done by the defendant, such as making a conveyance, either by decreeing the conveyance without judicial investigation or by regarding it as made (Bullock v. Bullock, 52 New Jersey Equity 561).

Administration.

Estates administered by a court are admin istered in accord with the law of the State where the administration is had. Each State may administer such things only as are within its jurisdiction; so that in the case of an estate part of which is found in each of two or more States administration must generally be undertaken independently in each State. In the case of adminis tration of the estate of a deceased, the executor or administrator gets power to collect claims owing to the deceased from, and is obliged to pay claims against the deceased by, the statutes of the State of his appointment ; and he can neither sue nor be sued on such a claim in another State (Johnson v. Powers, 139 U.S.

156). In cases, however, where no domestic administrator has been appointed and there are no local creditors to be prejudiced, a foreign administrator may collect claims due the deceased (Wilkins v. Ellett, 1o8 U.S. 256).

Recognition and Enforcement of Foreign Rights.—A right having been created by the appropriate law, the recognition of its existence follows everywhere (Folger, J., in King v. Sarria, 69 New York 24). So a body created as a corporation in one State will be recognized as such in another State (Bank of Augusta v. Earle, 13 Peters [U.S.] 519). This is true even though the right so created is absolutely illegal in the State which recog nizes it. Thus, a polygamous or incestuous marriage contracted in a State where it is valid will be recognized as a legal status of that kind even in a State where it is illegal (Sutton v. Warren, Metcalf [Mass.] 451) ; though it need not be treated as a so called "Christian" marriage would be. It is merely recognizing a foreign fact. A slave for the same reason must be recognized as such even in a free State. It is true that if a slave comes into a free State he cannot be restrained by his master; not because he ceases to be a slave, but because in such a State there is no right in a master to restrain a slave (Ware, J., in Polydore v. Prince, Ware [U.S. district court] 402).

Though a foreign right will always be recognized as existing, it does not follow that it will be given any legal force. No foreign right will be enforced unless the law of the State so provides.

Where a right has once been created by the proper law it will be enforced in another State even where it would not originally have been created by that State on the same facts (Greenwood v. Curtis, 6 Massachusetts 358), but enforcement of a foreign right will be denied where it would be illegal to carry it out, as where the right was created in evasion or fraud of the domestic law (Hill v. Spear, 5o New Hampshire 253), or against public policy or morality (Emory v. Burbank, 163 Massachusetts 326). So where a foreign marriage is valid and the spouses come into a State where it is regarded as incestuous they may not cohabit as man and wife in that State (State v. Brown, 47 Ohio 102).

No governmental right of another State will be enforced, like a right to taxes or a claim for a criminal fine ; and for the same reason an alimentation claim created to save the State from the burden of support of a dependent person will not be enforced in another State.

Remedy.

The remedy afforded for the enforcement of a foreign right is such only as a State may choose to allow. The State may open its courts to whom it pleases; but foreigners are usually allowed free access to courts (Roberts v. Knights, 7 Allen [Mass.] 449). No action can be brought if it may bring into question the title to foreign land; nor can a foreign right be enforced which requires for its proper enforcement a procedure which the court of forum cannot provide.

Where suit is brought in a foreign court, all matters relating merely to the remedy are determined by the law of the forum.

Thus the law of the forum determined the proper parties, the proper form of action (LeRoy v. Beard, 8 How. [U.S.] the exemptions from attachment (Mineral Point R.R. v. Barron, 83 Illinois 365), the right to set-off (Gibbs v. Howard, 2 New Hampshire 296), the right to confess judgment (Hamilton v. Schoenberger, 49 Iowa 385). The law of the forum determines whether action is barred for usury (Gale v. Eastman, 7 Metcalf [Mass.] 14) or for failure to comply with the statute of frauds, where usury or the statute of frauds goes rather to the remedy than to the right. If it is claimed that remedy is barred by the statute of limitations, it is the statute of the forum which decides (Townsend v. Jemison, 9 How. [U.S.] 407), unless indeed some statute which has power to do so has actually extinguished the right. That may happen where it was a condition of the right at the time of its creation that it should be exercised within a certain time (The Harrisburg, 119 U.S. 199).

The rules of evidence applied are those of the forum; and so presumptions of fact are determined by the law of the forum (Hoadley v. Transportation Co., 115 Massachusetts 304). The measure of damages, since it has to do with the nature of the right of action, must be determined by the law of the State where the action arose; it is not a question of remedy (Paynter, J., in R.R. v. Whitlow, 105 Kentucky 1; see Meyer v. Estes, Massachusetts 457). So interest, where given by way of damages, is regulated by the law of the place of payment, not of the forum (Peck v. Mayo, 14 Vermont 33 ; Healy v. Gorman, 15 New Jersey 328; contra, Ayer v. Tilden, 15 Gray [Mass.] 178).

Where, however, a statutory regulation of damages amounts not to a settlement of the rules for measuring compensation but to a limitation (irrespective of the amount of damage) of the amount allowed to be recovered, it has to do with remedy rather than with right, and is governed by the law of the forum (Finch, J., in Wooden v. R.R., 126 New York io; compare R.R. v. Bab cock, 154 U.S. 190).

BIBLIOGRAPHY.—The classical treatise is J. Story, Conflict of Laws (1st ed. 1834) ; the latest and most trustworthy is H. F. Goodrich, Con flict of Laws (1928). See also "Restatement of the Conflict of Laws," American Law Institute. (J. H. BE.)