Select Page

Conflicts of Law
SUNY Buffalo Law School
Phillips, Stephanie L.

Conflict of Laws Study Guide
Fall 2006
Traditional Approach
1) The Place of Wrong, CB 6-17, 1st Rest. § 377
a)      Traditional Choice of Law Theory Principles
i)         Discouragement of Forum shopping…
ii)       Uniformity
iii)      Predictability
iv)      Protection of expectations
v)        Territorial sovereignty
(1)    No extra-territorial sovereignty
vi)      Comity vs. vested rights
vii)     Obligations (which follow you)
viii)   Place of Wrong (hereinafter “POW”)
b)      POW Governs COL: Alabama Great Southern R.R. Co. v. Carroll, 97 Ala. 126 (1892)
i)         Facts: Π Carroll worked for ∆ AL RR, injured on ∆’s train in MI
ii)       Holding: torts will be governed by the law of the injury (the place of wrong)
(1)    Negligence not actionable, the harm is what is actionable and that occurred in MI (last event rule)
iii)      Consider: law of POW often undermines policies of state with closer contact to the parties and their injuries
c)       1st Restatement, Conflict of Laws § 377 (1934)
i)         “The place of wrong is in the state where the last event necessary to make an actor liable for an alleged tort takes place.”
ii)       Consider: Notes to § 377
(1)    Bodily harm, POW = “harmful force takes effect upon the body”
(2)    Poison, POW = “where [it] takes effect and not where it is administered”
(3)    Land or chattels, POW = “where the force takes effect on the thing”
(4)    Fraud, POW = “where the loss is sustained, not where fraudulent representations are made”
(5)    Reputation, POW = “where the defamatory statement is communicated”
2) The Situs of Property, CB 25-30, Note (1) at CB 89-90
a)      Situs of Property Considerations
i)         Law of situs governs property.
ii)       Draft of 2nd Restatement says (1) “land and things attached to the land are within the exclusive control of the state in which they are situated,” (2) “immovables are of greatest concern to the state in which they are situated,” and (3) “[the] demands of certainty and convenience…”
iii)      Ease of use: the location of land, unlike the place where a K is made, is rarely a matter of controversy.
iv)      Difficulties: (1) movable property does not always remain in one place and (2) what about intangible property like insurance policies, bank accounts or shares of stock?
v)        Exceptions: (1) intestate succession, (2) testamentary succession, (3) testamentary powers of appointment, (4) validity of testamentary trust, and (5) rights of spouses in one another’s movable property (determined by domiciliary rather than situs law.
b)      Situs of Property Governs: In Re Barrie’s Estate, 240 Iowa 431 (1949)
i)         Facts: Barrie had real property in IA, died in IL, IL revoked his will which has “void” written on it. Beneficiary took will to IA for probate, but IA had rule that will validity determined by law of place of execution or testator’s domicile.
ii)       Holding: forum courts must not recognize foreign revocation of wills disposing of real property in their state.
(1)    IA will determine issue of revocation of will with respect to real property in IA
(2)    IA statute referred only to question of the formalities of execution and not of revocation, so IA law controlled (because IA property involved).
iii)      Consider: validity of wills questions look to the conflicts principles of the real property involved.
c)       Statutory Solutions
i)         Foreign executed wills
(1)    General rule: movable property governed by law of domicile, immovable property governed by law of situs
(2)    See Uniform Probate Code § 2-506: “A written will is valid if executed in compliance with [this Code] or if its execution complies with the law at the time of execution of the place where the will is executed, or of the law of the place where at the time or execution or at the time of death the testator is domiciled, has a place of abode, or is a national.”
(a)     Problems: what rules determine domicile? What about execution vs. revocation rules? What about formalities like rule against perpetuities?
3) The Place of Contracting: Qualifications and Connecting Factors, CB 17-25, 1st Rest. § 7, Uni. of Chicago v. Dater
a)      POC Governs Ks: Milliken v. Pratt, 125 Mass. 374 (1878)
i)         Facts: ∆ Pratt guaranteed payment of her husband’s debt to π Milliken, but did not pay ∆ $1 consideration required. ∆ executed the guarantee in MA and mailed to ∆ in ME where it was accepted. ∏ sold goods to ∆’s husband who didn’t pay; ∆ refused to pay. Π sued ∆ in MA court, where ∆ did not have capacity to K; ∆ wins. Π appeals.
ii)       Holding: issues regarding the

in accordance with the law of the state where the land is… (2) all questions concerning the validity of a decree of divorce are decided in accordance with the law of the domicil of the parties, including the Conflict of Laws rules of that state.”
g)      Kinds of Property; How Determined, 1st Rest. § 208: “Whether an interest in a tangible thing is classified as real or personal property is determined by the law of the state where the thing is.”
h)      POC and COL Rules: University of Chicago v. Dater, et al., 277 Mich. 658 (1936)
i)         Facts: ∆ Price, wife, executed a mortgage deed in MI which was returned to IL. Mortgagor sued her and trial court found she had no liability (for lack of capacity) under MI law. Mortgagor appealed claiming that acceptance was in IL where she had liability.
ii)       Holding: Under the choice of law rules of MI, the law of IL applied, and the law of IL held that the determination of capacity was governed by MI law (where deed was executed), therefore ∆ Price was not liable
iii)      Consider: “While there are almost numberless cases which state, with slight variations, the general proposition that, where a contract is either expressly or tacitly to be performed in some place other than that where it is made, the general rule is, in conformity to the presumed intention of the parties, that the contract, as to its validity, nature, obligation, and interpretation, is to be governed by the law of the place of performance, none of them can be regarded as express authority for the application of that rule to the question of the capacity of a married woman to contract. Few of them can be relied upon for the application of that rule to any question relating to the existence of a contract as distinguished from its interpretation or obligation or essential validity.”
4) Domicile, CB 30-36
Domicile Basics: