378 HARVARD LAW REVIEW. try governed by the Roman or continental system.^ Ir. such a case the place where the contract was made can be of no assistance whatever. To decide by either of the competing systems of law where the contract was made, and then to infer from the place where it was made what law should govern it, would be mere reasoning in a circle. 3. It will not be necessary to dwell long upon the place of per- formance. Its importance has always been placed upon the true principle, namely, that it has a tendency to show the intention of the parties. Thus Willes, J., in Lloyd v. Guibert, says the law of the place of making the contract ought to prevail, in the absence of circumstances indicating a different intention, ** as, for instance, that the contract is to be entirely performed elsewhere." ^ Upon this ground the place of performance has often been allowed to override the presumption arising from the place of making, but like the place of making, its value as evidence of intention varies greatly in different cases. In some contracts the place of perform- ance is expressly fixed ; in others it is left to construction and inference from extrinsic facts ; in still others, as in contracts of carriage, the performance may be partly in several different juris- dictions; ^ and again, of the different stipulations in the same con- tract, some may be performable in one jurisdiction, and some in another, as in Hamlyn & Co. v. Talisker Distillery, where the obli- gation of Kemp & Co. to deliver free on board at Carbost, Skye, was performable in Scotland, while the clause of reference was performable in London, and required the co-operation of both parties there.* It may also happen that in a given case the con- flicting systems of law would fix different places of performance for 1 Article 321 of the General German Commercial Code provides: " In the case of a contract concluded between parties at a distance, the time at which the contract is concluded is held to be the time at which the declaration of acceptance is delivered for forwarding." " The place from which the declaration of acceptance is sent is the place of conclud- ing the contract." F. Litthauer's note to Art. 321 above, citing Decisions of the Reichsoberhandelsgericht, vii. (2d ed.) 11. 2 L. R. I Q. B. 115, 122. ' In Cohen v. South Eastern Ry. Co., a contract for passage between Boulogne and London, Brett, J. A., suggested that the law of each country might govern that part of the contract which was performed within it. 2 Ex. D. 253, 262, 263.
- In order to appreciate the full import of this case as an authority, it should be
noticed that the clause of reference was both made in England and performable in England. The law of England might have been applied upon that ground, in accord- ance with a long line of previous decisions ; but the House of Lords proceeded wholly upon the ground of the intention of the parties derivable from the contract.
