Page:Harvard Law Review Volume 9.djvu/399

HARVARD LAW REVIEW. VOL. IX. JANUARY 25, 1896. NO. 6. HAMLYN & CO. v. TALISKER DISTILLERY:^ A STUDY IN THE CONFLICT OF LAWS. THE question for discussion in this article is the true principle by which to determine what law shall govern as to the in- trinsic validity and effect of a contract made between parties liv- ing under different systems of law, or having a foreign legal element in it from any cause whatsoever. As a preliminary step, it ought to be stated according to what system of law the question is to be examined. As Professor Dicey has pointed out,^ the court, in which a question of this nature arises, always decides it in accordance with the law of its own country. A controversy in a Massachusetts court, for example, as to which of several competing systems of law shall be selected and applied to a con- tract, is always determined in accordance with principles of the law of Massachusetts, the law of the forum ; although the expres- sion lex fori in the conflict of laws is commonly used in a narrower sense, meaning the law which governs the remedy. To control the remedy, however, is but one function of the lex fori. 1 [1894] A. C. 202. 2 6 L. Q. R. I ; 7 L. Q. R. 113. The principle worked out by Mr. Dicey, in the articles cited, has been stated by other writers on the conflict of laws, and is also known and valued by continental jurists. Windscheid says: "It is the merit of Wachter to have emphasized with energy that the question respecting the applica- bility of foreign law can be answered only out of the native law, and this conception at the present time is that almost universally prevailing." Lehrbuch (7th ed.), T. § 34, note 6. A different view is held by the Franco-Italian school. See Laurent, Droit Civil International, ii. Nos. 67-73, PP- i^9~38' 49