Page:Harvard Law Review Volume 9.djvu/409

381 CONFLICT OF LAWS. 3^1 given to the personal law of the promisor or debtor, that is, gener- ally speaking, to the law of his domicil. The parties have an equal interest in the obligation. If, on the one hand, the promisor or debtor must be understood to promise in accordance with the law of his domicil, it must be supposed that the creditor or prom- isee understands the promise and expects performance in accord- ance with the law of his domicil. Assuming that each party is ignorant of the law of the other's domicil, neither can justly con- tend that the obligation should be governed by his law. The fact of domicil, when the parties have different domicils, is in itself of no assistance in determining the governing law, because it has no tendency to prove a mutual intention, which is the controlling fact. When the contract is made inter absentes, by correspondence or otherwise, this proposition is clear. It is equally true, however, when one of the parties goes to the domicil of the other, and con- cludes the contract there. The importance to be given to the place of making the contract in such a case is greatly increased ; while that of domicil remains unaffected.^ 6. Other circumstances tending to throw light upon the question of the intention of the parties have been referred to in different cases by the courts. If the parties belong to different nations and speak different languages, the language used in making the con- tract, especially if it be in writing, may be of great importance. The same may be said of the form of the contract, if it is peculiar to the country of one of the parties, or of the use of legal terms peculiar to the law of one of the parties.''^ The circumstances which may become material in different cases are scarcely capable of being enumerated, much less of being assigned any fixed weight. 1 In order to apply the theory of the law of the debtor's domicil to a bilateral con- tract, the ingenious suggestion was made that such a contract can always be treated as made up of two separate unilateral contracts, each party being a debtor in respect to what he promises. Savigny (Guthrie's transl., 2d ed.), § 369, p. 195; Bar (2d ed.), § 250, p. 545. This suggestion, even if admitted to be sound, does not affect the argu- ment. An unwarranted preference is still given to the law of the debtor. As to divid- ing a contract in the way suggested, see Laurent, vii. No. 450, p. 540. Professor Bar (in § 250, p. 543) names Windscheid as among the adherents of his theory, which has strong supporters in Germany. Windscheid says : " The point of space to which binding legal relations belong, is determined through the domicil of the parties. In and by itself, not less through the domicil of the creditor than of the debtor." Lehrbuch (7th ed.), I. § 35. 3. Further, in a note to this section, note 4a, he criticises the position of Bar, and the similar position of Savigny, that the person of the debtor is more closely bound up with the entire legal relation than that of the creditor. 2 See Nelson, Private International Law, 276; Krell z/. Codman, 154 Mass. 454, 457.