Page:Harvard Law Review Volume 10.djvu/197

171 DICEY S ''CONFLICT OF LAWS:' 171 act? Clearly not. "It is a solecism to speak of that transaction as a contract which cannot be a contract because of the inability of the persons to make it such."^ The legal effect of a contract, and all matters pertaining to its performance or discharge, and to damages for its breach, should evidently be judged by the law of the country in which they are respectively to take place ; that is, by the lex loci solvendi. If, for instance, protest of a bill is to be made in France, the law of that country alone can judge whether it has been duly made, for that law alone is present where it is made. This leaves for Professor Dicey's universal actor, the " proper law of the contract," that is, the law by which the parties in- tended to be governed, a very subordinate role. The intention of the parties, as judged from their acts, here as elsewhere gov- erns the interpretation of the contract, and that alone. If there is doubt as to the legal meaning of language, reference should be had to the law which appears to have been in the minds of the parties. So much for principle ; now let us see which view is supported by authority. I. Capacity of Parties. Until 1878 the English decisions were all, in accordance with principle, to the effect that capacity to con. tract was determined by the lex loci contractus. In that year the Court of Appeal reversed the judgment of the Probate Division in a matrimonial cause, and in the course of his opinion Cotton, L. J. (for the court) said obiter-. "■ It is a well recognized principle of law that the question of personal incapacity to enter into any con- tract is to be decided by the law of domicil. . . .As in other contracts, so in that of marriage, personal capacity must depend on the law of domicil." ^ No authority was cited (none but that of Continental writers could have been cited) in support of this statement, and the point had not been argued by counsel. Sir James Hannen, at a later stage of the same case, commented thus on the dictum : *' I trust that I may be permitted without disre- spect to say that the doctrine thus laid down has not hitherto been ' well recognized.' On the contrary, it appears to me to be a novel principle, for which up to the present time there has been no English authority. What authority "there is seems to me to be the 1 Wallace, J., in Campbell v. Crampton, 2 Fed. Rep. 417, 423. 2 Sottomayer v. De Barros, 3 P. D. i. 23