Page:Harvard Law Review Volume 9.djvu/405

CONFLICT OF LAWS, 377 In that part of the passage here quoted from Lord Justice Turner which refers to the principle of allegiance, whether perma- nent or temporary, an implication is suggested that the law of the place where the contract is made is imposed upon the parties and governs their agreement without reference to their intention. This implication, however, is destroyed by the remainder of the passage, which clearly refers the application of the law of the place of contracting to the will of the parties themselves. If, then, the law of the place of making applies by virtue of an ** agree- ment in fact," such agreement must be based upon mutual inten- tion. The presumption in favor of the law of the place of making, called a presumption de jure^ is conceded to be rebuttable, and can therefore be controlled by evidence of a different intention. Being merely evidence, it also follows that the place of making may be of different degrees of importance in different cases. For example, in a case like Jacobs v. Credit Lyonnais,^ where two English mercan- tile houses, carrying on business in England, made a contract in London, to be performed partly in Algiers, where the law of France prevails, the place of making the contract is a fact of great impor- tance, and was so treated by the court. On the other hand, in the case of a contract concluded by correspondence, or by telegraph or cable, or even by an agent, the place where the contract is made has very little, if any, tendency to show a mutual intention to sub- mit to the law of that place. Furthermore it is often difficult to decide where a contract inter absentes was in fact concluded.^ Finally, the place where a given contract was concluded may be determined differently by different systems of law. Such a differ- ence may be a question of practical importance in a case where there is a conflict between the common law and the law of a coun- 1 12 Q. B. D. 589. 2 It cannot be expected that this difficult subject, having a literature of its own, will be discussed here. Usually the question of the place where a contract is com- pleted is not separated from that of the time when it is completed. Professor Lang- dell's discussion of the latter question is too well known to the readers of this Rf.view to need citation- See Holmes, The Common Law, 305; 7 Am. Law Rev. 433. The point is a subject of controversy among the continental jurists. Windscheid, Lehr- buch {7th ed.), IL § 306, and note 10; Savigny (Guthrie's transl., 2d ed.), § 371, pp. 214-216; Bar, Priv. Int. Law (2d ed.), §§ 270, 271. Also § 128, note E, p. 289. vSee Laurent, Droit Civil International, vii. Nos. 447 et seq. In the case of a unilateral contract, the place where the consideration is furnished would seem to be the place of making. Milliken v. Pratt, 125 Mass. 374. The nature of the consideration, how- ever, may be such as to require acts to be performed in several different jurisdictions.