Page:Harvard Law Review Volume 10.djvu/196

170 I/O HARVARD LAW REVIEW, is to enforce a contract, it must be because that contract has in some state created a legal right. The municipal law, as Professor Dicey rightly indicates (page 4), determines the legal effect of actions which are done within its jurisdiction. Now a contract gives rise to legal obligations, because in the place where the act of contract takes place a legal obligation is created by that act. When two men shake hands in Boston, the law of England is inca- pable of attaching any legal consequence to their act. There is no law of England where the act is done. The law of Massachusetts is there, ready, if it chooses, to give the act legal significance. If it does not choose, the act is incapable of having a legal sig- nificance. No right, in other words, can spring up on the soil of Massachusetts, unless it is created by the laws of Massachu- setts. If, therefore, a contract, legally binding, is made in Massa- chusetts, the law of Massachusetts makes it binding. Now suppose that a contract in Massachusetts requires a consideration ; that in Japan a contract does not require a consideration. Sup- pose two persons in Massachusetts make an agreement without consideration, to be performed in Japan, evidently intending that it shall be governed by the law of Japan, does any legal right arise out of the agreement? It would seem not. Massachusetts law attaches no legal liability to an agreement without consideration : therefore the agreement there made does not become legally binding anywhere. It was not legally binding by the law of Japan because nothing was done within the jurisdiction of Japanese law. Now if no legal right arose in Massachusetts, there is no principle of the Conflict of Laws by which a right could be recog- nized anywhere else in the world. This is only another way of saying that parties cannot by their own will change the law of the country in which they are. If, for illustration, two men in coun- try A could have their acts judged by the laws of country B, they would have power of changing the law to which they are subject. It seems clear, therefore, on principle, that, whether a legally bind- ing contract has been made can be judged only by the lex loci contractus. By the same line of reasoning it will be seen that the capacity of the parties to make a contract must be judged by the lex loci contractus^ not by the lex domicilii. Suppose a boy of ten, domi- ciled in a country where he is of age, attempts to make a contract in London, will the law of England annex a legal obligation to his
 * the extra-territorial recognition of rights." If, therefore, a court