enunciate such a strange conclusion. Therefore the law has said that if the contract is to be carried out in whole in another country, it is to be carried out wholly according to the law of that country, and that must have been the meaning of the parties. But if it is to be carried out partly in another country than that in which it is made, that part of it which is to be carried out in that other country, unless something appears to the contrary, is taken to have been intended to be carried out according to the laws of that country."-Chatenay v. Brazilian Submarine Telegraph Co., [1891] 1 Q. B. 79, at p. 82; 60 L. J. Q. B. 295, at p. 298, Lord Esher, M. R.

"If a foreign contract is brought before an English Court, the Court has to construe that foreign contract, which is in writing, just as it is the Court which has to construe an English contract; but if it is a foreign contract which has to be construed, it must be construed according to the canons of construction used in the country to which the contract belongs, or, as we say, according to the place where it is made."-The Industrie, [1894] P. 58, at p. 72; 63 L. J. P. 84, at p. 87, Lord Esher, M. R.

"Where a contract is entered into between parties residing in different places, where different systems of law prevail, it is a question, as it appears to me, in each case, with reference to what law the parties contracted, and according to what law it was their intention that their rights either under the whole or any part of the contract should be determined. In considering what law is to govern, no doubt the lex loci solutionis is a matter of great importance. The lex loci contractus is also of importance. In the present case the place of the contract was different from the place of its performance. It is not necessary to enter upon the inquiry, which was a good deal discussed at the Bar, to which of these considerations the greatest weight is to be attributed, namely, the place where the contract was made, or the place where it is to be perIn my view they are both matters which must be taken into consideration, but neither of them is, of itself, conclusive, and still less is it conclusive, as it appears to me, as to the particular law which was intended to govern particular parts of the contract between the parties. In this case, as in all such cases, the whole of the contract must be looked at and the rights under it must be regulated by the intention of the parties as appearing from the

formed.

contract.

It is perfectly competent to those who, under such

circumstances as I have indicated, are entering into a contract, to

indicate by the terms which they employ, which system of law they intend to be applied to the construction of the contract and to the determination of the rights arising out of it."-Hamlyn & Co. v. Talisker Distillery, [1894] A. C. 202, at pp. 207, 208, Lord Herschell, L. C.

"When two parties living under different systems of law enter into a personal contract, which of these systems must be applied to its construction depends upon their mutual intention, either as expressed in their contract, or as derivable by fair implication from its terms. In the absence of any other clear expression of their intention, it is necessary and legitimate to take into account the circumstances attendant upon the making of the contract and the course of performing its stipulations contemplated by the parties; and amongst these considerations, the locus contractûs and the locus solutionis have always been regarded as of importance, although English and Scotch decisions differ in regard to the relative weight which ought to be attributed to them when the place of contracting is in one forum, and the place of performance in another.”—Ibid., A. C. at p. 212, Lord Watson.

"This is what Mr. Westlake says in s. 212, on p. 258 [Westlake's Private International Law, 3rd edition]: 'It may probably be said with truth that the law by which to determine the intrinsic validity and effects of a contract will be selected in England on substantial considerations, the preference being given to the country with which the transaction has the most real connection, and not to the law of the place of contract as such.' That seems to me to be as precise and accurate a statement as one can expect to find in any judgment or treatise, having regard to the necessarily infinite variety of facts which require consideration in cases of this character."-South African Breweries, Ltd. v. King, [1899] 2 Ch. 173, at p. 182; 68 L. J. Ch. 530, at p. 534, Kekewich, J.

"That the intention of the parties to a contract is the true criterion by which to determine by what law it is to be governed is too clear for controversy: see Hamlyn & Co. v. Talisker Distillery, [1894] A. C. 202."-Spurrier v. La Cloche, [1902] A. C. 446, at p. 450; 71 L. J. P. C. 101, at p. 103, Lord Lindley.

"The law of the country in which the contract is made and is to be performed, and in which the parties are domiciled, ought to prevail unless there is such duress as must be considered to avoid the contract under any but unreasonable and uncivilised institutions of law-a description which would be applicable to such a case as

that of consent obtained, e.g., by physical torture, or by the use of drugs.”—Kaufman v. Gerson, [1903] 2 K. B. 114, at pp. 119, 120; 72 L. J. K. B. 596, at p. 600, Wright, J.

“That learned writer discusses this question at great length in the work to which reference has been made, and makes the following general observations in s. 76 [Story on the Conflict of Laws, 7th ed. (1872), at p. 78], on the inconvenience of allowing the law of domicil to govern contracts made in other countries. He says: 'How are the inhabitants of any country to ascertain the condition of a stranger dwelling among them, as fixed by the law of a foreign country where he was born or had acquired a new domicil? Even Courts of justice do not assume to know what the laws of a foreign country are; but require them to be proved. How, then, shall private persons be presumed to have better means of knowledge? On the other hand, it may be said with great force that contracts ought to be governed by the law of the country where they are made, as to the competence of the parties to make them, and as to their validity; because the parties may well be presumed to contract with reference to the laws of the place where the contract is made and is to be executed. Such a rule has certainty and simplicity in its application. It ought not, therefore, to be matter of surprise if the country of the party's birth should hold such a contract valid or void, according to its own law, and that, nevertheless, the country where it is made and to be executed should hold it valid or void, according to its own law. It has been well observed by an eminent judge, that "with respect to any ignorance arising from foreign birth and education, it is an indispensable rule of law, as exercised in all civilised countries, that a man who contracts in a country engages for a competent knowledge of the law of contracts of that country. If he rashly presumes to contract without such knowledge he must take the inconveniences resulting from such ignorance upon himself, and not attempt to throw them upon the other party who has engaged

under a

proper knowledge and sense of the obligation, which the

law would impose upon him by virtue of that engagement"."" Ogden v. Ogden, [1908] P. 46, at pp. 59, 60; 77 L. J. P. 34, at p. 39, Sir Gorell Barnes, P.

"I think the conclusion from these authorities [Copin v. Adamson (1874), L. R. 9 Ex. 345; 43 L. J. Ex. 161, and others] is that to make a person who is not a subject of, nor domiciled nor resident in, a foreign country amenable to the jurisdiction of that

country, there must be something more than a mere contract made or the mere possession of property in the foreign country."-Emanuel v. Symon, [1908] 1 K. B. 302, at p. 309; 77 L. J. K. B. 180, at p. 184, Lord Alverstone, C. J.

"The decision of the Privy Council [in Sirdar Gurdyal Singh v. Rajah of Faridkote, [1894] A. C. 670] is clear that there is no implied obligation on a foreigner to the country of that forum to accept the forum loci contractus, as having, by reason of the contract, acquired a conventional jurisdiction over him in a suit founded upon that contract for all future time, wherever the foreigner may be domiciled at the time of the institution of the suit. Such an obligation may exist by express agreement, as in the case of Copin v. Adamson (1874), L. R. 9 Ex. 345; 43 L. J. Ex. 161, and as in many cases of foreign contracts where the parties by articles of agreement bind themselves to accept the jurisdiction of foreign tribunals; but such an obligation, as is pointed out in the decision of the Privy Council [Sirdar Gurdyal Singh v. Rajah of Faridkote, [1894] A. C. 670, at p. 686], is not to be implied from the mere fact of entering into a contract in a foreign country."-Emanuel v. Symon, [1908] 1 K. B. 302, at pp. 313, 314; 77 L. J. K. B. 180, at p. 187, Kennedy, L. J.

Application of Lex Fori.

The mode of suing, and the time within which the action must be brought, must be governed by the law of the country where the action is brought.

"The plaintiff, therefore, must recover here upon what is called comitas inter comitates; but it is a maxim that cannot prevail in any case where it violates the law of our own country, the law of nature, or the law of God. . . . If the right sought to be enforced is inconsistent with either of these, the English municipal Courts cannot recognise it. I take it, that that principle is acknowledged by the laws of all Europe."--Forbes v. Cochran (1824), 2 B. & C. 448, at p. 471, Best, J.

"In the case just mentioned [Melan v. The Duke of Fitzjames (1797), 1 B. & P. 138] the distinction taken by Mr. Justice Heath, who differed from the other judges, was, that in construing contracts the law of the country in which they are made must govern, but that the remedy upon them must be pursued by such means as the law points out where the parties reside. This doctrine is said to

correspond with the opinions of Hüber and Voet. I have not had an opportunity of looking into those authorities, but we think, on consideration of the present case, that the distinction laid down by Mr. Justice Heath ought to prevail. A person suing in this country must take the law as he finds it; he cannot, by virtue of any regulation in his own country, enjoy greater advantages than other suitors here, and he ought not, therefore, to be deprived of any superior advantage which the law of this country may confer. He is to have the same rights which all the subjects of this kingdom are entitled to."-De la Vega v. Vianna (1830), 1 B. & Ad. 284, at pp. 287-8, Lord Tenterden, C. J., delivering the judgment of the Court. (Cited in In re Klæbe (1884), 28 Ch. D. 175, at p. 178; 54 L. J. Ch. 297, at p. 299, by Pearson, J., who added, "and that has been the rule in this country, as far as I know, from the earliest time.")

"The rule which applies to the case of contracts made in one country, and put in suit in the Courts of law in another country, appears to be this: that the interpretation of the contract must be governed by the law of the country where the contract was made (lex loci con tractus); the mode of suing, and the time within which the action must be brought, must be governed by the law of the country where the action is brought (in ordinandis judiciis, loci consuetudo, ubi agitur). See Huberi Prælectiones Civilis Juris, tit. 3; De Conflictu Legum, sect. 7. This distinction has been clearly laid down and adopted in the late case of De la Vega v. Vianna [supra]. See also the case of The British Linen Co. v. Drummond [(1830), 10 B. & C. 903], where the different authorities e brought together."-Trimbey v. Vignier (1834), 1 Bing. N. C. 151, at p. 159, Tindal, C. J.

are

"The distinction between that part of the law of the foreign country where a personal contract is made, which is adopted, and that which is not adopted by our English Courts of law, is well known and established; namely, that so much of the law as affects the rights and merit of the contract, all that relates ad litis decisionem is adopted from the foreign country; so much of the law as affects the remedy only, all that relates 'ad litis ordinationem' is taken from the lex fori' of that country where the action is -Huber v. Steiner (1835), 2 Bing. N. C. 202, at p. 210,

brought.

Tindal, C. J.

"Whatever relates to the remedy to be enforced, must be determined by the lex fori, the law of the country to the tribunals of