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Conflicts of Law
Southern Illinois University School of Law
Beyler, Keith H.

CONFLICTS OUTLINE

I. TRADITIONAL APPROACHES:
A. GENERAL APROACH:
1. Theoretical basis: forum must apply the law of the state in which the rights of the parties vest.
1) Definition-vest: rights are deemed to vest in the place where they are created (i.e., where the act occurred or relationship was created).
2. Methodology: 2-step analysis:
1) Characterization: forum court must first “characterize” the lawsuit into a basic legal category (e.g., torts, contracts, property).
2) Localizing the connecting factor: forum court must localize the significant event or thing (the connecting factor) in a particular jurisdiction and apply the law of that state.
3. Application of relevant law: forum then applies the law of the jurisdiction in which the significant event or thing occurred.
1) Escape devises: to avoid harsh and unjust results, courts often reach decisions through various escape devises.
1) Substance vs. procedure distinction.
2) Alternative characterization.
3) Renvoi.
4) Local public policy.
B. TORTS:
1. Nonintentional Torts-“place of wrong” rule (Rest. § 378): tort liability is determined according to the law of the place of “wrong.”
1) Place of injury as place of wrong (Alabama Great Southern R.R.): place of wrong is generally the placed where P’s injuries were sustained.
2) Exceptions to place of injury rule:
1) Duty or Privilege to Act (§382): where D’s conduct was privileged (e.g., to the life or property of another), courts apply the law of the place where the conduct took place.
2) Contributory negligence (§385): whether contributory negligence of P precludes recovery for negligent injury is determined by the law of the place where the tortious conduct occured.
3) Vicarious Liability (§387): law of the place of wrong determines whether D is liable for the tort of the other ONLY if the other person is authorized to act for him.
2. Intentional Conduct (Marra v. Bushee): place where the tortious conduct occurred will be considered to be the place of wrong.
1) Note-primarily occurred: determinative issue is where D’s conduct primarily occurred.
C. CONTRACTS:
1. Validity Problems-“place of making” rule (§332): problems relating to the validity of a contract are determined by the law of the place where the contract was made.
1) What constitutes a validity problem: above ruled applied to issues involving formalities of the contract:
1) Sufficiency of consideration.
2) Parties’ capacity.
3) Fraud.
4) Illegality.
5) Defenses making contract voidable.
6) Nature and extent of duty.
2) Determining place of making (§311): generally this is where the offer was accepted.
1) Example-telephone (Linn): for contracts negotiated in an interstate telephone call, the place of “making” was where the accepting party spoke.
2. Performance problems-place of performance rule (Rest. § 358): performance problems are governed by the law of the place at which performance is called for in the contract.
1) What constitutes a performance problem: performance problems include:
1) Sufficiency of performance.
2) Manner of performance.
3) Excuses for nonperformance:
a) Example-Incapacity (Poole): when a contract is entered into in one state but is to be performed in another, the incapacity rules of the state of performance controls.
b) Example-Illegality of performance (§360): illegality of a contract is determined by the laws of the place of performance.
4) Existence and materiality of breach.
5) Questions relating to damages (measure, amount, etc.).
6) Right to rescind: when based on performance issues.
2) Practical line separating question of obligation from question of performance: place of performance isn’t

on: a person who lacks the minimal competency to choose a home will retain the domicile of his parents.
4) Corporation: corporation is domiciled in the state where incorporated, and can’t acquire a domicile outside that state.
3. Domicile determined by law of forum: governing law is that of the forum.
1) Note: this is true even where the domicile is another state or country.
2) Constitutional limitation: it might violate the 14th Amendment Due Process Clause for a forum to adopt some unique concept of “domicile” to justify application of its laws to nonresidents.
E. MARRIAGE:
1. General Rule (Rest 1st § 121): validity of a marriage is determined by the law of the place of celebration (i.e., where the marriage relationship was entered into).
1) Reference to law of domicile to uphold marriage: where a marriage wouldn’t be valid under the law of the place of celebration but would be valid under the law of the parties’ domicile, courts will apply the law of the domicile, provided this isn’t grossly offensive to a STRONG public policy of the forum.
2) Statutes regulating choice of law: under some statutes, marriages by local residents entered into outside the state are invalid if contrary to the laws of the place of marriage.
2. Specific applications:
Formal requirements of marriage (§122): marriages valid at the place of celebration are generally upheld against any law of the parties’ domicile that would invalidate the marriage for noncompliance with formal