Professor Maltz
Conflict of Law
Fall 2012
Introduction
(a) Transactions and disputed occurences frequently relate to two or more sovereigns (parties may be domiciled in different states, events may occur occur in different states). As such, several sovereigns may have constitutional authority to apply their respective laws to the same transaction/occurrence, and those laws may differ. This is the potential “coflict” of laws. The power of a sovereign to apply its law to an occurrence is termed “legislative jurisdiction,” which is different from “personal jurisdiction.”
(b) Any state that has personal jurisdiction and legislative jurisdiction over the parties may simply apply lex fori, the law of the forum.
I. First Restatement
(a) Theory: All rights are created by some law, which is enacted by political entities. Laws create rights by providing that, upon the happening of certain events, rights accrue. This is call “vesting.” A right “vests” when the last act occurs that is necessary to fulfill all elements required by law. The only sovereign that may create rights is that sovereign in whose territory the last event occurs.
(b) Methodology: (1) Characterize the action: Is it a tort, contract, or property problem? (2) Consult the applicable general substantive law and determine what “last act” is necessary to vest the right. (3) Determine the place of the “last act.” (4) Apply the substantive law of the “last act” locale.
(c) The forum court determines according to its conflict rules whether a given question is procedural or substantive.
(d) Benefits:
-ease of administartion
-predictability
-forum neutrality
(e) Based on formal legal theories; rule-based; territorial.
A. Torts (Lex Loci Delicti)
(a) The “place of wrong” determines both the nature and the extent of tort liability. Note that the “place of wrong” is construed as the place where the last event giving rise to the liability occured (i.e., te “place of injury”).
§ 377 The Place of Wrong
The place of wrong is in the state where the last event necessary to make an actor liable for an alleged tort takes place. . . .
NOTE
1. Except in the case of harm from poison, when a person sustains bodily harm, the place of wrong is the place where the harmful force takes effect upon the body. . . .
2. When a person causes another voluntarily to take a deleterious substance which takes effect within the body, the place of wrong is where the deleterious substance takes effect and not where it is administered.
3. When harm ic caused to land or chattels, the place of wrong is the place where the force takes effect on the thing. . . .
4. When a person sustains loss by fraud, the place of wrong is where the loss is sustained, not where fraudulent representations are made. . . .
5. Where harm is done to the reputation of a person, the place of wrong is where the defamatory statement is communicated. . . .
§ 378 Law Governing Plaintiff’s Injury
The law of the place of wrong determines whether a person has sustained a legal injury. . . .
§ 379 Law Governing Liability-Creating Conduct
Except as stated in § 382, the law of the place of wrong determines:
(a) whether a person is responsible for harm he has caused only if he intended it;
(b) whether a person is responsible for unintended harm he has caused only if he was negligent;
(c) whether a person is responsible for harm he has caused irrespective of his intention or care which he has exercised. . . .
§ 382 Duty or Privilege to Act
(1) A person who is required by law to act or not to act in one state in a certain manner will not be held liable for the results of such action or failure to act which occur in another state.
(2) A person who acts pursuant to a privilege conferred by the law of the place of acting will not be held liable for the results of his act in another state. . . .
NOTE: The question of liability is determined by the law of the place of wrong, but the question of privilege is determined by the law of the place where the actor acts.
§ 384 Recognition of Foreign Cause of Action
(1) If a cause of action in tortis created at the place of wrong, a cause of action will be recognized in other states.
(2) If no cause of action is created at the place of wrong, no recovery in tort can be had in any other state. . . .
§ 385 Contributory Negligence
Whether contributory negligence of the plaintiff precludes recovery in whole or in part in an action for negligent injury is determined by the law of the place of wrong.
§ 386 Liability to Servant for Tort of Fellow Servant
The law of the place of wrong determines whether a master is liable in tort to a servant for a wrong caused by a fellow servant. . . .
§ 387 Vicarious Liability
When a person authorizes another to act for him in any state and the other does so act, whether he is liable for the tort of the other is determined by the law of the place of wrong.
§ 390 Survival of Actions
Whether a claim for damages for a tort survives the death of the tortfeasor or of the injured person is determined by the law of the place of wrong. . . .
§ 391 Right of Action for Death
The law of the place of wrong governs the right of action for death. . . .
§ 398 Compensation under Act of State Employment
A workman who enters into a contract of employment in a state in which a Workmen’s Compensation Act is in force can recover compensation under the Act in that state for bodily harm arising out of and in the course of the employment, although the harm was suffered in another state, unless the Act provides in specific words or is so interpreted as to apply only to bodily harm occurring within the state. . . .
§ 399 Compensation under Act of State Harm
Except as stated in § 401, a workman may recover in a state in which he sustains harm under the Workmen’s Compensation Act of that state although the contract of employment was made in another state, unless the Act provides in specific words or is so interpreted as to apply only when the contract of employment is made within the state. . . .
§ 402 Effect of Two Acts Governing Injury
Proceedings may be brought in a state under the Workmen’s Compensation Act of that state, if it is applicable, although the Act of another state is applicable. . . .
§ 412 Measure of Damages for Tort
The measure of damages for a tort is determined by the law of the place of wrong.
§ 419 Interest on Injury to Property
The rate of interest allowed as part of the damages for injury to property by a tort is determined by the law of the place of wrong. . . .
§ 420 Interest on Foreign Judgment
In an action on a foreign judgment, the rate of interest allowed for delay in satisfying the judgment is determined by the law of the place of wrong. . . .
§ 421 Exemplary Damages
The right to exemplary damages is determined by the law of the place of wrong.
1. Nonintentional Torts
Alabama Great Southern Railroad v. Carroll
FACTS: P, a citizen of Alabama, was an employee od D railroad, an Alabama corporation. The D railroad provided services between Tennesee through Alabama to Mississippi. P was under contract in Alabama. P’s injuries were suffered in Mississippi. Alabama is the forum. Mississippi recognizes the fellow-servant rule, while Alabama does not, accordingly P’s negligence action would be barred in Mississippi but not Alabama.
HOLDING: There can be no recovery in one State for injuries to the person sustained in another unless the infliction of the injuries under the law of the State in which they were received.
2. Intentional Torts
Mara v. Bushee (Not Consistent With First Restatement)
FACTS: P, a resident of New York, brought suit in Fed.Ct. in Vermont against D, a Vermont resident, for alienation of affection of P’s husband.
HOLDING: Uncertai about what approach state courts would take, so it analyzes it under both approached. (1) “Place of injury” for negligent torts but it is “place of conduct” for intentional torts. There is a distinction between negligent torts which are primarily compensatory in character and properly subject to the place of harm rule, and intentonal torts, which are primarily admonitory in character requiring the application of the laws of the state in which the wronful conduct occurred. (2) But even if “place of injury” does govern, because this was an injury to the marriage, like an injury to chattel, consortium follwos the alienated spouse into Vermont.
B. Contracts
(a) Rights are deemed to vest either where the contract was made (place of contract) or where the contract was to be performaed (place of performance), depending on the issue in question.
(b) Difficult at time to draw line between whether law of the “place of contracting” or the law of the “place of performance” should govern. Generally, if the issue involves an incidental detail of performance, then the law of the “place of performace” governs; but if the issue involves a major obligation under the contract (that the parties would care about), then the law of the “place of contracting” will govern.
§ 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 called the “place of contracting.”
Cmt. d Determination of “place of contracting.”
Under its Conflicts 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 neessary 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.
§ 312 Formal Contract
Except as stated in § 313, when a formal contract becomes effective on delivery, the place of contracting is where the delivery is made.
Cmt. a
Formal contracts are contracts under seal, recognizances and negotiable instruments, and other contracts which are given by statute the character of formal contracts.
§ 314 Formal Contract Completed by Mail or Carriage
When a document embodying a formal contract is to be delivered by mail or by a common carrier, the place of contracting is where the document is posted or is received by the carrier.
§ 315 Formal Contract Delivered by Agent
When a document embodying a formal contract is delivered through an agent of the promisor, the place of contracting is where the agent delivers it.
§ 316 Formal Contract Delivered by Escrow
When a document embodying a formal contract is delivered in escrow, the place of contracting is where it is delivered in escrow.
§ 323 Informal Unilateral Contract
In the case of an informal unilateral contract, the place of contracting is where the event takes place which makes the promise binding.
§ 325 Informal Bilateral Contract
In the case of a informal bilateral contract, the place of contracting is where the second promise is made in consideration of the first promise.
§ 326 Acceptance Sent from One State to Another
When an offer for a bilateral contract is made in one state and an acceptance is sent from another to the first state in an authorized manner the place of contracting is as follows:
(a) If the acceptance is sent by an agent of the acceptor, the place of contracting is the state where the agent delivers it;
(b) if acceptance is sent by any other means, the place of contracting is the state from which the acceptance is sent.
Cmt. b Acceptance by Telegraph
When an acceptance is authorized to be sent by telegraph, the place of contracting is where the message of acceptance is received by the telegraph company for transmission.
Cmt. c Acceptance by Telephone
When an acceptance is to be given by telephone, the place of contracting is where the acceptor speaks his acceptance.
§ 331 Contract Made through Unauthorized Agent
(1) If an agent acting beyond or contrary to his instructions, or one who purports to be an agent, makes or accepts a promise for the principal and his act is ratified by the principal, the place of cotracting is where the agent acts.
(2) If by the law of the place where the agent acted, there is no contract as a result of ratification, the ratification is regarded in the statewhere it is made as the acceptance of an offer made to the agent and transmitted by him and if the acceptance completes a contract, the contract is there made.
§ 332 Laws Governing the Validity of Contract
The law of the place of contracting determines the validity and effect of a promise with respect to:
(a) capacity to make the contract;
(b) the necessary form, if any, in which the promise must be made;
(c) the mutual assent or consideration, if any, required to make a promise binding;
(d) any other requirements for making a promise binding;
(e) fraud, illegality, or any other circumstances which make a promise void or voidable;
(f) except as stated in § 358, the nature and extent of the duty for the performance of which a party becomes bound;
(g) the time when and the place where the promise is by terms to be performed;
(h) the absolute or conditional character of the promise.
§ 333 Capacity to Contract
The law of the place of contracting determines the capacity to enter into a contract.
Cmt. a Distinction between capacity to make contract and capacity to transfer property
There is a distinction between capacity to make a contract and capacity to transfer property. The capacity to transfer land is governed by the law of the state where the land is (see § 216), but capacity to make a contract for the transfer of land is governed by the law of the place of contracting. So too, capacity to transfer a chattel is governed by the law of the state where the chattel is at the time of the conveyance (see § 255), but capacity to make a contract for the transfer of a chattel is governed by the law of the place of contracting.
§ 334 Formalities for Contracting
The law of the place of contracting determines the formalities required for making a contract.
Cmt. a Statute of Frauds
The requirments of writing may be a requirement of procedure or a requirement of validity, or both. If, for instance, the statute of frauds of the place of contracting is interpreted as meaning that no evidence of an oral contract will be received by the court, it is a procedural statute, and inapplicable in the courts of any other state. If, however, the statute of frauds of the place of contracting is interpreted as making satisfaction of the statute essential to the binding character of a promise, no ac
by the law of the domicil of the parent whose relationship to the child is in question.
§ 138 Legitimacy at Birth
The legitimate kinship of a child to either parent from the time of the child’s birth is determined by the law of the state of domicil of that parent at that time.
§ 139 Legitimacy from Birth
An act or event after the birth of a child who was born illegitimate may make it the legitimate child of either parent from birth if the law of the state of domicil of that parent at the time of the child’s birth and the law of the parent’s domicil at the time of the legitimating act so provide.
§ 140 Legitimacy after Birth
An act done after the birth of an illegitimate child will legitimize the child as to a parent from the time of the act if the law of the state of domicil of that parent at that so provides.
§ 141 Effect of Legitimacy Created by Foreign Law
The status of legitimcay, created by the law of a state having jurisdiction so to do, will be given the same effect in another state as is given by the latter state to the status when created by its own law.
In re May’s Estate
ISSUE: Whether a marriage celebrated in RI is valid in NY.
FACTS: NY jewish domiciliaries were married in RI where a statute prohibeted marriage between uncle and niece except for followers of the jewish faith. NY statute prohibeted allowing celebration of such marriages within the NY but said nothing about such marriages celebrated outside of NY.
HOLDING: Absent a statute expressly regulating within the domiciliary state marriages solemnized abroad, the legality of a marriage is to be determined by the law of the place where it is celebrated.
Lanham v. Lanham
FACTS: Plaintiff divorced Sherman in Wisconsin. Wisconsin law prohibited her from re-marrying within one year of divorce so she went to Michigan to marry Lanham and then returned to Wisconsin.
HOLDING: The general rule of law is that a marriage valid where it is celebrated is valid everywhere. To this rule, however, there are two general exceptions: (1) marriages which are deemed contrary to law of nature generally recognized by Christian civilized states; and (2) marriage which the lawmaking power of the forum has declared shall not be allowed validity on grounds of public policy. A state undoubtedly has the power to declare what marriages between its own citizens shall not be recognized as valid in its courts, and it also has the power to declare that marriage between its own citizens contrary to its establshed public policy shall have no validity in its courts, even though they be celebrated in other states and under whose laws the marriage would be valid. In this sense the forum state has power to give extraterritorial effect to its laws. The intention to give such effect, however, must be clear. To say that the forum’s legislature intended such a law to apply only while the parties are within the boundaries of the state, and that it contemplated that by crossing the state line citizens could successfully nullify its terms is to make the act essentially useless and impotent, and ascribe practical imbecility to the lawmaking power. We hold that when persons domiciled in this state, and who are subject to the provisions of the law, leave the state for the purpose of evading those provisions, and go through the ceremony of marriage in another state, and return to their domicile, such pretended marriage is within the provisions of the forum’s law, and will not be recognized by the courts of the forum state.
NOTE:Not consistent with the First Restatement. Gives extraterritorial effect to the forum’s law.
Although there is much controversy when the law of the state of celebration validates the marriage and the law of domicile does not, it seems to be widely agreed that if the law of the place of celebration invalidates the marriage, it is invalid everywhere.
D. Real Property
(a) Escape Device: Equitasble conversion is a specialized characterization device that permits a court to recharacterize real property as personal property and thus in a decedent’s case, change the law from the situs to the decedent’s domicile.
(b) Distinction between immovabel (real) property and movable (personal) property.
(c) Real Property: Loke to law of the situs for the following—
-conveyances
-adverse possession
-mortgages and liens
-marital property
-trusts
-intestacy
(d) Personal Property
(i) Intervivos Transactions: Giverned by the law of the place where the movable was located at the time of the transaction. It is immaterial that the parties to the transaction are domiciled elsewhere, or that the agreement to make the transaction occurs elsewhere.
(ii) Succession: Questions concerning testamentary disposition of movables and intestate succession of movables to the law of the decedent’s domicile at the time of death.
(e) Conveyance v. Contract to Convey
-Conveyance: formal transfer of land is governed by law of the situs
-Contract to convey is merely a promise to convey and is therefore governed by the law of the place of contracting.
§ 211 Property in Tangible Thing: Where Created
The original creation of property in a tangible thing is governed by the law of the state where the thing is at the time of the events which create the interests.
§ 214 Legal Effect and Interpretation of Words Used in an Instrument of Conveyance
(1) Words used in an instrument of conveyance of an interest in land which, by the law of the state where the land is, have a given operative effect irrespective of the intent of the conveyor, will be accorded such effect in any state.
(2) Words used in an instrument of conveyance of an interest in land which, by the law of the state where the land is, have a given operative effect unless a contrary intent is shown by admissible evidence, will be accorded such effect in any state.
(3) The meaning of words used in an instrument of conveyance of an interest in land which, by the law of the state where the land is, are accorded neither of the effects described in Subsections (1) and (2), is in the absence of controlling circumstances to the contrary, determined in accordance with usage at the domicile of the conveyor at the time of the conveyance.
§ 216 Capacity to Convey Interest in Land
Capacity to make a valid conveyance of an interest in land is determined by the law of the state where the land is.
