Page:Harvard Law Review Volume 9.djvu/402

374 371 HARVARD LAW REVIEW. considerations the greatest weight is to be attributed, namely, the place where the contract was made, or the place where it is to be performed. In my view they are both matters which must be taken into consideration, but neither of them is, of itself, conclusive, and still less is it conclusive, as it appears to me, as to the particular law which was intended to govern particular parts of the contract between the parties. In this case, as in all such cases, the whole of the contract must be looked at, and the rights under it must be regulated by the intention of the parties as appearing from the contract. It is perfectly competent to those who, under such circumstances as I have indicated, are entering into a contract, to indicate by the terms which they employ, which system of law they intend to be applied to the construction of the contract and to the determination of the rights arising out of it." (pp. 207, 208.) Lord Watson and Lord Ashbourne also delivered careful opin- ions ; and ail the judges agreed in the proposition that the question before them depended upon the intention of the parties. While the Lord Chancellor and Lord Watson expressly recognize that the place of making the contract is of importance, they do not accord to that fact any precedence or weight over other material facts; although both declared that it was not necessary to discuss the relativevalue of the place of making and the place of performance. The effect of the whole case, however, is to raise a grave doubt whetHer any presumption will be admitted in future, in England, in favor of the law of the place where a contract is made.^ On the other hand, the case is a distinct and weighty authority for the proposition that the intention of the parties is the ultimate and controlling fact upon which the selection of the law governing a contract depends. When the decision is read in connection with previous cases, it will be found that this proposition is not new. In 1865, in the case of Lloyd v. Guibert, in the learned and closely reasoned judgment ofWilles, J., in the Exchequer Chamber, it is laid down as the general principle, *' that the rights of the parties to a contract are to be judged of by that law by which they in- tended, or rather by which they may justly be presumed to have bound themselves." ^ Other passages of like import might be cited both from Lloyd v. Guibert, and other cases; and in the usual statement of the rule, as is shown by the form of it above quoted 1 Sir Frederick Pollock, Contracts {6th ed.),369 (2;), says: "But Hamlyn & Co. v. Talisker Distillery, '94 A. C. 6 R. (July) 14, seems rather against any fixed presump- tion, and see Mr. Westlake's remarks," 2 L. R. I Q. B. lis, 123.