Page:Harvard Law Review Volume 9.djvu/408

38o HARVARD LAW REVIEW. be attached. There is no general or fixed presumption that suit will be brought at the domicil of the defendant rather than of the plaintiff. In fact, as the choice of the forum rests with the plaintiff, he is likely to select that forum where the law will be most favorable to his claim. As a rule, therefore, the circum- stance of the forum must be considered of sHght importance in determining the governing law. 5. Nationality of the parties, a circumstance of great and in- creasing importance in private international law on the continent of Europe,^ is seldom referred to, as an independent fact in contra- distinction to domicil, by courts administering the common law. The domicil of the parties, a fact of the greatest importance in questions of personal status and capacity, and in the contract of marriage, although often mentioned in questions relating to the law which shall govern an ordinary contract, is seldom made the basis of elaborate argument. In Hamlyn & Co. v. Talisker Dis- tillery, the residence of the parties was mentioned,^ but no special importance was attached to it. When both contracting parties have the same domicil, the infer- ence is strong that they are dealing with reference to the system of law under which they are living. What is to be said when the parties have different domicils? Professor Bar contends that the law of the debtor's domicil is, in principle, the true starting-point from which to determine the governing law. He gives the preference to the domicil of the debtor, for this reason, " that the general propositions of law in the matter of obligations, the rules which do not give way to the pleasure of the individuals, exist generally in the interest of the debtor." Further, he says : *' The person of the debtor is without doubt more closely bound up with the whole legal relation than that of the creditor." And the debtor must be understood as prom- ising performance in the sense of the law which he knows, that is, to which he is personally attached.^ This theory, however, cannot be accepted. It cannot be admitted that a preference should be greater significance as to the intent of the parties, since suit had to be brought either at the domicil of the defendant or within the forum contractus, so called, the plaintiff having his election between those places. Savigny (Guthrie's transl., 2d ed.), § 372, p. 223. 1 See Bar (2d ed.), § 28, p. 252. 2 [1894I A. C. 206, 211, 213. 8 Bar (2d ed.), § 250, pp. 543-546; § 249, p. 539.