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Conflict of Laws
St. Johns University School of Law
McGuinness, Margaret E.

Conflicts of Law
Prof. McGuinness – Spring 2013
Part I:  Choice of Law: the Basic Model
The Traditional Approach
1.        “What is “Conflicts of Laws?”
a.       Conflict of Laws: A set of procedural rules that determine to what extent the forum jurisdiction will apply foreign law.
                                                               i.      Before a court can determine an outcome, it must first determine what law applies.
                                                             ii.      These may be either:
1.       Between two laws within a single jurisdiction (ex. the legislature drafts a law that conflicts with an existing statute), or
2.       Between the laws of two different jurisdictions.
                                                            iii.      Domestic: States and interstate jurisdiction, states and federal.
                                                           iv.      International: Domestic (state or federal) and foreign, domestic v. international
b.      Why do I care?
                                                               i.      Because a court can say “what the law is”, needs to choose what law to apply. This is called Choice of Law
                                                             ii.      In a globalized economy, all aspects of law are affected by conflicts and choice of law
2.       Vocabulary:
a.       Forum: place where suit is brought
b.      Foreign state: any state not the forum state (may be domestic or international)
c.       Lex loci delicti: law of the place of the injury
d.      Comity: respect and deference to the laws of another jurisdiction
e.      Territoriality: apply law on the basis of geographical jurisdiction of a political unit
f.        Extraterritoriality: extending jurisdiction beyond the geographical boundaries of political unit
g.       Contact: Factual connection.
h.      Policy: Social objective expressed in law (case or statute).
i.         Interest: Justification, confluence of policies + contacts,
Traditional Characterizations:
1.     Torts
General Rule: The law of the place of wrong governs (lex loci delictis).
–          Place of wrong is determined by localizing the connecting factor.
o   The place of wrong is where the last necessary event occurred to establish the tort.
§  See Alabama Great Southern Railroad v. Carroll. Plaintiff was a brakeman for the defendant railroad company. As a result of negligent maintenance in AL, he was injured in MS. AL allowed recovery, yet MS did not. MS law applied and claim for negligence denied. No claim for negligence can be brought without damages, and injury was suffered in MS.  
2.     Contracts
General Rule: The law were the contract was made governs (lex loci contractus).
–          If a contract was made over state lines, the law where the final act making the contract binding applies.
o   See Milliken v. Pratt. Defendant (MA) signed as guarantor for her husband’s contract with plaintiffs on ME. Under MA law, married women could not act was a surety (yet this was permitted under ME law). Guarantee was signed by plaintiffs in ME and therefore ME law applies.
Place of Contracting (pursuant to the Second Restatement).
–          §311. Place of contracting: principal event necessary to make a contract occurs. 
–          §312. Formal contract: effective on delivery, place of contracting is where delivery is made.
–          §323. Informal Unilateral Contract: where the even takes place that makes the contract binding.
–          §325. Informal bilateral contract: where second promise is made in consideration of first promise
–          §326. Acceptance from one state another:
o   If acceptance is sent by an agent of the acceptor, the state where the agent delivers it is controlling.
o   By other means- state from which acceptance is sent. 
–          §332. Validity and Effect of the Contract: Determined law of place where contract was made (capacity, necessary form, consideration, requirements to make a promise binding, time and place where the promise is to be performed, character of the promise)
–          §358. Performance handled with place where contract is to be performed (manner, time, locality, people involved, sufficiency, excuse for non-performance).
3.     Property
General rule: The law of situs governs immovable property (lex loci situs).
–          The law of the place of the property is to govern as to the capacity of testator.  Also determines marriage, property, mortgages and wills.
–          The law of situs does not always apply to movable property, and the court looks at things such as the time of possession and where they are located during the course of litigation.
o   See In re Barrie’s Estate. In 1928, Mary Barrie (resident of Illinois) made a will in which she left all her property, including 160 acres of land in Iowa to the First Presbyterian Church of Sterling and three other beneficiaries. The will was signed and properly witnessed. In 1944, Mrs. Barrie died and the will had void written across the front. Under Illinois statute, this is sufficient to void a will. However, in the state of Iowa, this was not. Iowa requires either destruction of a will or its cancellation witnessed by two persons (Blacket v. Ziegler). Iowa law applied with regards to the property in Iowa.
4.     Estate Law
General Law: The place where the will was executed.
However, see domicile.
White v. Tennant (WV 1888) : Man died intestate in WV, π his siblings, ∆ wife and father in law. Question of whether domiciled in WV (wife gets all) or PA (wife gets half). Had just moved to PA, wife sick in WV, saying with family there when died.  Held: PA domicile, and applied PA Law based on two part test: (1) Residence – things were there (2) Intention to remain – had intended to move to PA.
Family Law: domicile of decedent for immovable; situs of corpus of immovable estate; marriage contract law of place of marriage; status by marital domicile
Procedure: law of forum (Exception: Borrow statute)
Domicile:  A “legal tool” employed to attach a person to a particular locality for a particular legal purpose.
–          This differs from residence. Residence requires simple physical presence.
–          Domicile requires two elements:
a.       Physical presence.
b.      Intent to remain indefinitely. 
–          See White v. Tennant.
c.       Domicile requires the non-existence to establish domicile elsewhere.
d.      Temporary absence does destroy domicile.
–          Definition: a person’s “headquarters” or the center of her life. This is not the same as a person’s residence, nationality or citizenship
–          Main legal concepts: domicile of origin; domicile of choice
–          Main factual issues: temporary, multiple or involuntary domicile; transitional period
o   Note: unlawful presence does not disregard domicile
–          Creation: Operation of law: esp domicile of origin; possibly derivative (ie, from parent to child)
–          Rules:
o   A person must have  a domicile at all times
o   A person may have no more than one domicile at a time for any given purpose
o   Domicile may vary depending on purpose
–          Domicile requires presence
o   To Establish presence: 1) no particular time line, might be very brief; 2) ‘presence’ continues even during temporary absences; 3) no specific residence need to bhave been established, 4) person may have more than one residence, 5) const

ght and remedy (see below).
o   See Grant v. McAuliffe. Grant (a Californian) and two other passengers (also Californians) were injured in a collision with another California, Pullen. The accident took place in Arizona. Pullen died and McAuliffe was appointed administrator of his estate. Plaintiffs filed suit in California. In CA, plaintiffs can file suit in an action for tort even if the defendant has died (bringing suit against the estate). In AZ, a tort action not brought before the death of the tortfeasor must be abated. Court applies CA law – survivor actions are procedural as they do not create a new cause of action but simple prevent an existing cause of action from expiring.
–          See Bournais v. Atlantic Maritime Co., LTD. Plaintiff (a sailor) filed suit against his former employer for two causes of action. The ship was originally registered as Panamanian but later was changed to Honduran. Goes to the law applied upon the ship. First cause of action for violation of the Panamanian Labor Code Articles 127, 154, 166 and 170: Plaintiff claimed three months pay due to him on the date the ship changed registry, in addition to wages for overtime, vacation and holiday pay. Second cause of action for violation under 46 U.S.C.A.  sec. 596 for failure to pay this amounts on time. Defendants argue the claim for violation of the Panamanian Labor Code was barred by the one year SOL in Article 623  (defendant was fired in 1950 and did not file suit until 1952). Court held that the statute of limitations was procedural and allowed the claim.
o   SOL is usually classified as procedure, but when a foreign SOL is regarded as barring the foreign right sued upon and not merely the remedy, it will be treated as conditioning that right and will be enforced as substantive.
o   Specificity Test: Was the limitation tied up with the newly created liability specifically to qualify the right?
§  The Supreme Court held the SOL for a wrongful death statute, as the liability and remedy are created by the same statute.
Statute of Limitations Issues
–          §603. Statute of Limitation of forum: if action is barred by statute of limitations in the forum, no action can be maintained even if OK according to law in the place of the accident.
–          §604. Foreign SOL: if the forum does not bar the cause, but the place of the accident does, it can still be maintained.
–          §605. If state with cause of action expires after a certain period, no cause of action can be bought after period elapsed in any state. 
–          §606. If the forum limits recovery, no greater amount can be recovered in its courts even if allowed by the law of the place where the accident occurred. 
–          Uniform Conflicts of Law Limitation Act: If a state applies substantive law of another state, then it will carry with it that state’s SOL. 
Second Restatement. The forum will apply its own SOL unless exceptional circumstances and will apply its own SOL unless the state governing the substantive law bars the action.