Page:Harvard Law Review Volume 9.djvu/404

376 376 HARVARD LAW REVIEW. by the law of Scotland. That cannot have been the intention of the parties ; it is not reasonable to attribute that intention to them if the contract may be otherwise construed ; and for the reasons which I have given, I see no difficulty whatever in construing the language used as an indication that the contract, or that term of it, was to be governed and regulated by the law of England." (pp. 208, 209.) Lord Ashbourne said : — "This interpretation gives due and full effect to every portion of the contract ; whereas the arbitration clause becomes mere waste paper if it is held that the parties were contracting on the basis of the application of the law of Scotland, which would at once refuse to acknowledge the full efficacy of a clause so framed. It is more reasonable to hold that the parties contracted with the common intention of giving effect to every clause, rather than of mutilating or destroying one of the most important provisions." (p. 215.) Without asserting that this circumstance is conclusive, it should always be considered, and has been referred to in several impor- tant decisions ^ as a circumstance of great weight. 2. The reason for the importance of the place of making a con- tract has been thus explained : — " The general rule is that the law of the country where a contract is made governs as to the nature, the obligation, and the interpretation of it. The parties to a contract are either the subjects of the power there ruling, or as temporary residents owe it a temporary allegiance : in either case equally they must be understood to submit to the law there prevail- ing and to agree to its action upon their contract. It is, of course, imma- terial that such agreement is not expressed in terms ; it is equally an agreement in fact, presumed de Jure, and a foreign court, interpreting or enforcing it upon any contrary rule, defeats the intention of the parties, as well as neglects to observe the recognized comity of nations."^ 1 Re Missouri Steamship Co., 42 Ch. D. 321, 337, 341 ; Peninsular & Oriental S. S. Co.z', Shand, 3 Moo. P. C. N. S. 272, 291 ; Pritchard v. Norton, 106 U. S. 124, 137 ; Bell V. Packard, 69 Maine, 105, 1 1 1 ; Wharton, Confl. (2d ed.), § 429. See also The Montana, 129 U. S. 397, 460, 461. Savigny (Guthrie's transl., 2d ed., § 372, p. 223), says it has been asserted that the local law which will best support the juridical act in question must always be applied. For this proposition, to which Savigny does not assent, the only authority cited' is Eichhorn, Deutsches Privatrecht, § 37, notes/, g. The passage in Eichhorn refers to cases where the locus contract^ls is doubtful, as in the case of contracts concluded by letter, and rests upon D. 45. 1. 80: Quotiens in stipulationibus ambigua oratio est^ commodissimum est id accipi, quo res, qua de agitur, in tuto sit. (Ulpian.) 2 Turner, L, J., in Peninsular & Oriental Steamship Co. v. Shand, 3 Moo. P. C. N. S. 272, 290.