of the obligation, the forum contractûs must be the domicil of the debtor.

court apply to the

Thus, (1.) If the particular place of (2.) If the obliga

(b.) The same rules which apply to the law which is to be used in its decisions. contract mentions, or necessarily implies a fulfilment, the law of that place is to rule. tion grows out of a continuous course of business of the obligated person, the law of the place where the business is carried on must be applied. (3.) If the obligation has arisen out of a single act of the obligated person in his domicil, the law there must prevail, although he change his domicil afterward. (4.) If the obligation arise from a single act of a person away from his domicil, and under circumstances implying the fulfilment in that place of temporary sojourn, the law of that place must govern in judicial decisions. (5.) If none of these suppositions are true, a suit must be regulated by the law of the obligated person's domicil, since there is a presumption, where no other place or local law can be assigned to the fulfilment, that it was expected to come to pass there.

It is to be observed, however, that the complainant may bring his suit likewise before the court of the domicil of the defendant, i. e. he may choose between two forums; but, in either case, the law must be applied as has been just laid down, that is, the law of the place of fulfilment of the obligation, or, in default of any fixed place, the place whose law is naturally to be presumed or the domicil of the debtor.

If, again, the application of the above-mentioned rules would subject a contract to laws which would make it invalid, while, by the law of the domicil, it would be binding, it is certainly to be presumed that it was not the intention of the parties to subject themselves to laws which would render their own purpose nugatory.

Capacity to incur obligations is determined by the law governing the person concerned, that is, the law of his domicil. The interpretation of contracts is controlled, according to the prevailing opinion, by the law and custom of the place of

performance. But Savigny remarks that the problem here is not to find out a rule of law, but to find out the true intention of the parties, according to rules of interpretation which are of a universal nature.

The validity of an obligation depends partly on the form, partly on the substance. For the former, compare what is said below in § 75. The substantial validity generally depends on the law of the place which controls the obligation. Whenever a law of a strictly positive nature opposes the matter of the contract, the lex fori contractûs must be applied. Thus if a suit for interest due on money be brought in a place where the usury laws would render such a transaction void, the judge must follow his own law.†

In cases of bankruptcy, where great differences of legislation exist, a simple rule would be that the courts of the insolvent's domicil should settle claims and distribute assets, whether domestic or foreign. But here there is a complication of difficulties. The creditors are of various kinds,-some privileged, some unprivileged, some having a simple claim of debt, others with a lien also on the insolvent's property, etc. And this property may be immovable property in a foreign land. Moreover, the foreign sovereign and courts often refuse to act in harmony with the court of the bankrupt's domicil. In these circumstances, some authors hold that the bankrupt's court ought to throw out of view foreign property, and that the creditors ought to sue in every jurisdiction where the debtor's property lies. The English courts, in distributing a bankrupt's assets, include foreign movable property, only; most of those of the United States, neither movable nor immovable. Savigny contends that it is feasible for the forum domicilii to act alone in cases of bankruptcy, these questions of difficulty as to foreign property notwithstanding.

§ 73.

IV. The appropriate seat of the right of succession, inasmuch as it adheres to the person deceased, is his Right of succes place of abode; and therefore the law of the domi- sion.

* Comp. Story, u. s., § 272, § 280.

† Savigny, u. s., § 374, page 277. But comp. Story, §§ 303–305.

cil, that is, of the domicil which the testator had at his death, ought to control in suits growing out of this right. No other law can claim to compete with, or prevail over it, unless it be the lex rei sita, the law of the place where the inheritance lies. But the estate, as a whole, or the inheritance, is something ideal, consisting of things in various places and of various rights in things, claims, etc. No place, therefore, can be

found, saving the domicil of the deceased man.

And yet there has been in practice no general observance of this rule. In former times the practice was to apply the principle of territoriality to every piece of property, of which the right of aubaine, as explained above (§ 63), was an extreme instance. In more recent times, English, French, and our own courts apply the law of the domicil in cases of succession to all movable property wherever situate, and the law of the situation (lex loci) to immovable property. In Germany, since the beginning of the present century, this distinction between the two kinds of property is less and less observed, and the law of the domicil is applied to the whole of an estate.

The court to which testaments and intestate estates belong, is that of the last domicil of the deceased proprietor.

The capacity of a testator to make a will so far as it depends on his jural condition or state, may be under the territorial law of two places,-that of his domicil at the time of making the will, and that of his domicil at the time of his decease. If invalid according to either of these laws, the will is defective. Thus, a will would be invalid, if, by the law of either of these places, the power of making testaments is not vested in private persons, and succession is regulated by intestate laws alone. The capacity in respect to physical qualities, as age, etc., depends on the law of the domicil where the will was made. The same law, for the most part, regulates the substance of wills and their interpretation.

The personal capacity of persons to whom property is devised, heirs or legatees, is judged of by the laws of the domicil which they had at the time of the testator's death. But when laws in their domicil, contrary to the moral or political ideas

prevailing where the testator lived, would cut them off, the law of the court which examines the will, i. e. commonly of the testator's domicil, must have application.

$ 74.

Family rights.

V. Family rights. (a.) Marriage. There is no doubt that the proper seat of matrimonial relations is the habitation of the husband as the head of the family. The law of his domicil must be followed, and the law of the place where the marriage was performed, so far as defining the relations is concerned, is of no importance. In England and the United States the doctrine is held, that the validity of marriage contracts must be tried by the law of the country where the marriage was celebrated.*

The hindrances to marriage depend in part on the personal quality of each of the parties; in part, on their relationship to one another. On general principles we might expect that the condition of the woman, according to the laws of her country, ought here to come into view. But as the laws regulating the possibility of marriage depend on the moral and religious views of each particular country, it must follow that the legal hindrances at the domicil of the man alone are to be regarded, and not those in the home of the bride, or at the place where the marriage ceremony occurred. In the matter of impediments to marriage the practice of nations differs widely.

As to the formalities necessary for the celebration of a mar riage, the general doctrine is that the lex loci contractûs must decide. Savigny, however, thinks, that where an inhabitant of a state which requires religious ceremonies of marriage, forms a civil marriage in a foreign country according to its laws, this is not enough; on the ground that the laws of his domicil have a moral and religious basis, and hence a coercive character. The marriage ought to be celebrated anew according to the religious forms of the man's own domicil.

It is much disputed what law ought to be followed where

* Comp. Story, § 89; Fœlix, II. 493.

the rights of property of the married pair are called in question. Here, too, the greatest differences exist between the law of different countries. The points especially in debate are, (1.) whether foreign property, as well as domestic, should follow the lex domicilii of the husband. Story contends against this, and in favor of following here the lex rei sito; Savigny and Fœlix would have the law of the domicil control throughout. (2.) What is to be done if the domicil is changed during marriage? Here some maintain that the law of the prior domicil, and others that of the new domicil should be followed. Others still claim that the law of the new domicil should be applied to the property acquired since the change of residence, and the law of the earlier to all held before the change. Savigny holds, that at the time of marriage, there was a tacit subjection of both parties to the law of their habitation, which ought, therefore, to be enforced afterwards. A new law might place the wife in a worse condition than she had expected at the time of marriage.

Intestate succession between a married pair is controlled by the law of the last domicil of the deceased party.

Divorce, on account of its relations to morals and religion, is the subject of strict positive law, which the judge of the place where that law reigns must follow. This law will be that of the present domicil of the husband; for the laws of the earlier domicil can have given neither of the married parties a right, or even a well-grounded expectation of being separated hereafter by the rules there prevailing, since the above-mentioned peculiar character of divorce laws leads to an opposite inference. In regard to divorce, the opinions of writers, and the decrees of courts, vary exceedingly from one another.

(b.) Guardianship. The guardian empowered according to the law of the ward's domicil, which will usually be that of the deceased parent, exercises control over the ward's property wherever situated. But in the case of immovable property, the lex rei sita may prevent such control of a foreigner, and it may be necessary to appoint a special guardian residing within the jurisdiction. In the United States, the power