Page:Harvard Law Review Volume 10.djvu/195

169 DICKY'S ''CONFLICT OF LAWSr 1 69 the rather provincial titles ** Jurisdiction of the High Court/' and "Jurisdiction of Foreign Courts." The book has, in great degree, the merits of completeness, clearness of arrangement, of thought, and of statement, and enlightened deahng with the au- thorities ; and the crowning quality of a book on this branch of the common law, ability to keep clear of the Continental writers. Professor Moore's American notes, while not complete collec- tions of the authorities, sufficiently indicate the tendency of the American decisions. One may, however, regret that he has not dealt more fully with the difficult subject of Assignment for Ben- efit of Creditors. One hesitates to express a dissent from the conclusions of so generally sound a thinker as Professor Dicey; but this seems a proper time to point out what seems an irrepressible conflict be- tween his general principles and his rules relating to foreign contracts. The rules on this subject as stated by Professor Dicey are in effect these : " ' The proper law of a contract ' means the law or laws by which the parties to a contract intended or may fairly be presumed to have intended the contract to be governed." ^ Gen- erally ** a person's capacity to enter into a contract is governed by the law of his domicil."^ Generally "the formal validity of a contract is governed by the law of the country where the contract is made." ^ " The essential validity of a contract is [generally] governed indirectly by the proper law of the contract";* a con- tract being essentially valid when the law will give effect to it, that is, when it is not forbidden by the law, or made void or void- able by law, as (he says) is the case with a gratuitous promise.^ under it of the parties thereto, are to be determined in accordance with the proper law of the contract." ^ " The validity of the dis- charge of a contract (otherwise than by bankruptcy) depends upon the proper law of the contract (?)."^ To these rules Professor Dicey is driven in his effort to ra- tionalize English cases. Let us see whether they are consistent with his fundamental purpose stated above. The English courts, as has been said, enforce rights acquired under foreign laws. In- deed, Professor Holland has most aptly described the subject as i Rule 143. « Rule 147. ^ Page 554. ^ Rule 150.
 * The interpretation of a contract and the rights and obHgations
 * Rule 146. • Rule 148. « Rule 149.