Page:Harvard Law Review Volume 9.djvu/411

383 CONFLICT OF LAWS, 383 the intention sought is a true intention, in the sense of the law of contracts : that is, the reasonable meaning of the acts and language of the parties in view of all the material circumstances in the case.^ It is not a rule of law imposed upon the parties, under the pretence, or fiction, of enforcing a mutual intention. The chief practical objection which can be urged against abandoning the presumption arising from the place of making a contract is the uncertainty of decision which may result. But uncertainty exists under the present rule. In the important case of The Montana, which has already been referred to, a contract of affreightment between an American shipper and ship-owners having a place of business in New York and also in England, made and dated in New York and signed by the ship's agent there, contained a stipulation exempting the owners from liability for negligence of the master and crew, which was valid by the law of England, but void by the law of America as declared by the Federal, and many of the State Courts. The Supreme Court of the United States held that the American law applied, on the ground that a contract is pre- sumed to be governed by the law of the place where it is made, and that there were no circumstances in the case to control the presump- tion. Soon afterwards, the English Court of Appeal, in the case of the Missouri Steamship Company, already cited, a case involving a similar stipulation, and presenting similar facts, reached an op- posite conclusion. The Supreme Court in a very learned opin- ion by Mr. Justice Gray, collated and relied upon a long line of English decisions, while the Court of Appeal apparently assented to the general rule of law as it was stated in The Montana, but held that the contract and the circumstances showed an intention of the parties to be governed by the law of England. These de- 1 " By ' intention ' however we must always remember is meant, not the expressed or even the consciously entertained intention of the particular persons, but the inten- tion which in the opinion of the Court most persons in the position of the particular parties would have entertained had their minds been called to the matter at the moment of entering into a contract or other legal transaction." 7 L. Q. R. 126 (A. V. Dicey). Laurent expresses the thought in nearly the same form: "Car il ne faut point perdre de vue que le legislateur est oblige de presumer ce que les parties auraient voulu, si elles avaient pense i la loi qui regira leurs conventions." vii., No. 441, P- 531- Professor Bar contends that it is misleading to reason from the intention of the parties, apparently upon the ground that the governing law is selected by positive rules independent of mtention. Bar (2d ed.), § 247, pp. 536-538. He admits, however, that the decisions of the Imperial Court of Germany are opposed to his view.