Conflict of contract laws

Last updated

In the conflict of laws, the validity and effect of a contract with one or more foreign law elements will be decided by reference to the so-called "proper law" of the contract.

Contents

History

In England, until the middle of the 19th century, the courts generally applied the lex loci contractus as the proper law. [1] [2]

Proper law

Express selection

In England, as of 1 October 1983, [3] when the parties express a clear intention in a choice-of-law clause, this is generally the proper law. [4]

Implied selection

In England, as of 1 October 1983, [3] when the parties have not used express words, their intention may be inferred from the terms and nature of the contract, and from the general circumstances of the case. [5]

Closest and most real connection

In Mount Albert Borough Council v Australasian etc Assurance Society Ltd, it was held that, in default, the court has to impute an intention by asking, as just and reasonable persons, which law the parties ought to, or would, have intended to nominate if they had thought about it when they were making the contract. [6] But see The Assunzione. [7]

Dépeçage

Some legal systems provide that a contract may be governed by more than one law. This concept is referred to as dépeçage. [8]

Related Research Articles

<span class="mw-page-title-main">Planning (Listed Buildings and Conservation Areas) Act 1990</span> Act of Parliament of the United Kingdom

The Planning Act 1990 is an act of the Parliament of the United Kingdom that altered the laws on granting of planning permission for building works, notably including those of the listed building system in England and Wales.

A legal periodical is a periodical about law. Legal periodicals include legal newspapers, law reviews, periodicals published by way of commerce, periodicals published by practitioner bodies, and periodicals concerned with a particular branch of the law.

In all lawsuits involving conflict of laws, questions of procedure as opposed to substance are always determined by the lex fori, i.e. the law of the state in which the case is being litigated.

Incidental questions in private international law with respect to the problems and elements discussed below. In the Roman conflict of laws, an incidental question is a legal issue that arises in connection with the major cause of action in a lawsuit. The forum court will have already decided that it has jurisdiction to hear the case and will be working through the next two stages of the conflict process, namely: characterisation and choice of law. For example, the court may classify the cause as "succession", but it notes that the plaintiff brings the claim for relief as the deceased's widow. Before the court can adjudicate on the main issue, it must first decide whether the plaintiff actually has the status claimed, i.e. the incidental question would be the validity of the claimed marriage. The inconvenient reality is that many lawsuits involve a number of interdependent legal issues. In purely domestic cases, this poses no difficulty because a judge will freely move from one domestic law to another to resolve the dispute. But in a conflict case, the question is whether the incidental question is resolved by reference either to its own choice of law rules, or to the same law that governs the main issue. States have not formulated a consistent answer to this question.

The doctrine of the proper law is applied in the choice of law stage of a lawsuit involving the conflict of laws.

<span class="mw-page-title-main">Poisons Act 1972</span> United Kingdom legislation

The Poisons Act 1972 is an act of the Parliament of the United Kingdom making provisions for the sale of non-medicinal poisons, and the involvement of local authorities and the Royal Pharmaceutical Society of Great Britain in their regulation.

<span class="mw-page-title-main">Income and Corporation Taxes Act 1970</span> United Kingdom legislation

The Income and Corporation Taxes Act 1970 was an act of the Parliament of the United Kingdom which was repealed in 1992.

<span class="mw-page-title-main">Planning (Consequential Provisions) Act 1990</span> Planning law statute act

The Planning Act 1990 was an Act of the Parliament of the United Kingdom to make provision for repeals, consequential amendments, transitional and transitory matters and savings in connection with the consolidation of enactments in the Town and Country Planning Act 1990, the Planning Act 1990 and the Planning Act 1990.

<span class="mw-page-title-main">Planning (Hazardous Substances) Act 1990</span> Act of Parliament on planning law

The Planning Act 1990 is an Act of the Parliament of the United Kingdom to consolidate certain enactments relating to special controls in respect of hazardous substances with amendments to give effect to recommendations of the Law Commission.

In law, dépeçage is a concept within the field of conflict of laws whereby different issues within a single case are governed by the laws of different jurisdictions. In common law countries, dépeçage can be used when a single contract provides that different parts of the contract shall be governed by different laws, or in the absence of a contract when a court's own choice-of-law rules cause it to apply different bodies of law to different questions.

<span class="mw-page-title-main">Dogs Act 1871</span> United Kingdom legislation

The Dogs Act 1871 is an Act of the Parliament of the United Kingdom which deals with the handling of stray and dangerous dogs.

Current Law Statutes Annotated, published between 1994 and 2004 as Current Law Statutes, contains annotated copies of Acts of the Parliament of the United Kingdom passed since 1947 and Acts of the Scottish Parliament passed since 1999. It is published by Sweet & Maxwell in London and by W Green in Edinburgh. It was formerly also published by Stevens & Sons in London.

<span class="mw-page-title-main">Bankruptcy Act 1861</span> United Kingdom legislation

The Bankruptcy Act 1861 was an Act of the Parliament of the United Kingdom.

<span class="mw-page-title-main">Land Transfer Act 1875</span> United Kingdom legislation

The Land Transfer Act 1875, sometimes called Lord Cairns' Act, was an Act of the Parliament of the United Kingdom that introduced a voluntary system of registration of title to land.

<span class="mw-page-title-main">Public Trustee Act 1906</span> United Kingdom legislation

The Public Trustee Act 1906 is an Act of the Parliament of the United Kingdom, which provides for the appointment of a public trustee, and which amended the law relating to the administration of trusts. This Act has been described as "important".

<span class="mw-page-title-main">Police Act 1919</span> United Kingdom legislation

The Police Act 1919 was an Act of the Parliament of the United Kingdom which set up an alternative dispute resolution system within UK labour law for collective disputes involving members of staff in the police force. The current rules are now found under the Police Act 1996. Following the British police strikes in 1918 and 1919, the government decided that it was a threat to the public to allow strikes among the police force to take place. The Police Act 1919 prohibited police from joining a trade union that could take strike action protected by the Trade Disputes Act 1906, and provided an alternative in the Police Federation of England and Wales. A substitute for strikes was binding arbitration to resolve collective disputes.

<span class="mw-page-title-main">Redundancy Payments Act 1965</span> United Kingdom legislation

The Redundancy Payments Act 1965 was an act of the Parliament of the United Kingdom that introduced into UK labour law the principle that after a qualifying period of work, people would have a right to a severance payment in the event of their jobs becoming economically unnecessary to the employer. The functions of the redundancy payment were to internalise the social cost of unemployment to the employer, make employers think more carefully before making people redundant, to compensate the employee for the loss of a job, and to provide a minimum sum of money for the employee in case future employment could not immediately be found. Together with the requirement of statutory minimum notice in the Contracts of Employment Act 1963, and the right to a fair dismissal first found from the Industrial Relations Act 1971, redundancy pay forms one of the three pillars of rights in dismissal.

<span class="mw-page-title-main">Bills of Exchange Act 1908</span> Act of Parliament in New Zealand

The Bills of Exchange Act 1908 is an Act of the New Zealand Parliament which regulates bills of exchange and related promissory notes. It is based on the Imperial Bills of Exchange Act 1882 (UK). The Act also applies to the Realm of New Zealand, which includes the Cook Islands and Niue as well as New Zealand.

This is a list of philosophy-related events in the 11th century.

The law of Andorra includes customary law and legislation.

References

  1. J H C Morris, The Conflict of Laws, Third Edition, Stevens and Sons, London, 1984, ISBN 0-420-46890-0, p 266.
  2. This approach was also generally adopted in Scotland: A E Anton, Private International Law: A treatise from the standpoint of Scots law, (Scottish Universities Law Institute), W Green & Son, Edinburgh, 1967, reprinted 1970, p 185. As to contract in conflict of laws in Scotland generally, see further the rest of chapter 7 ("Contract").
  3. 1 2 J H C Morris, The Conflict of Laws, Third Edition, Stevens and Sons, London, 1984, p vii
  4. J H C Morris, The Conflict of Laws, Third Edition, Stevens and Sons, London, 1984, ISBN 0-420-46890-0, p 270.
  5. J H C Morris, The Conflict of Laws, Third Edition, Stevens and Sons, London, 1984, ISBN 0-420-46890-0, p 275.
  6. Mount Albert Borough Council v Australasian etc Assurance Society Ltd [1938] AC 224 at 240. J H C Morris, The Conflict of Laws, Third Edition, Stevens and Sons, London, 1984, ISBN 0-420-46890-0, p 276.
  7. The Assunzione [1954] P 150 at 175. As to the effect this case, see J H C Morris, The Conflict of Laws, Third Edition, Stevens and Sons, London, 1984, ISBN 0-420-46890-0, p 276, footnote 60.
  8. J H C Morris, The Conflict of Laws, Third Edition, Stevens and Sons, London, 1984, ISBN 0-420-46890-0, p 528.

Further reading