REVIEWS
| Published date | 01 May 1962 |
| Date | 01 May 1962 |
| DOI | http://doi.org/10.1111/j.1468-2230.1962.tb02212.x |
REVIEWS
DICEY’S
CONFLICT
OF
LAWS. Seventh edition. Under the general
editorship
of
J.
H.
C.
MORRIB,
D.c.L.(Oxon.)
with specialist
editors. cxxiv and
1116
and (index)
64
pp. [London: Stevens
&
Sons,
Ltd.
1958.
E6
6s.
net.]
IN
this edition the content of this standard work has not only been carefully
brought up to date, extensively rewritten and enlarKed, but has also been
rearranged, this being, according to the Preface, “the most important single
change” which has been made. This has brought together marriage and
matrimonial causes, the latter being formerly treated
in
the first part of the
book, dealing with jurisdiction, the former appearing in the last part, sand-
wiched between quasi-contract and torts. Unfortunately, even the present
arrangement does not present
a
connected treatment of the effect of marriage
on property. The effect of marriage on movables is examined
at
length
in
a
chapter which distinguishes the case where there is
a
settlement and where
there is none and also examines the effect of
a
change of domicile after
marriage. The effect of marriage on immovables is described much more
briefly in the chapter on immovables, dealing separately with foreign land,
where, regardless of whether
or
not there is
a
settlement, the
lex n’tw
including its conflict rules is said to apply, and with English land where,
as
in the case of movables, the rights of the spouses depend on the terms of
the settlement. The case where there is no settlement is dealt with
in
a
footnote which suggests that the
ler
sitw
perhaps prevails. There is no
discussion of the effect of
a
change of domicile although
Chiwell
v.
Carlyon
would seem to call for it. This case should not be discussed under marriage
settlements as the South African regime of community, as distinct from
what has been found to be the case under the French rkgime, does not rest
on an implied contract.
Re Pearse’s Settlement
is hardly authority for the
application of
renvoi
but merely applies the rule that the validity of transfers
of land depends on the
lex
sitw.
Although it is claimed
that
in
Re Bgerton’s
Will
Trwts
the view expressed in the previous edition
as
to the meaning of
the matrimonial domicile was preferred to that of Cheshire, this view is now
modified by conceding that in special circumstances the husband’s domicile
at
the time of marriage
is
not the matrimonial domicile. This is perhaps an
unnecessary concession to
obiter dicta
which were derived from
a
confusion
between the application of the law of the husband’s domicile
as
the proper
law of
a
marriage settlement on the basis of the presumed intention of the
parties and the peremptory application of this law where there is no
settlement.
The chapters on contracts, in many ways the best and most authoritative
part of the book, are indispensable reading for practitioners and judges and
have made important contributions to the solution of difflcult problems,
as
in
Re United Railways
of
Havana.
Th-re are some points on which fuller
discussion would have been welcome. What is the line dividing contracts
involving violation of the laws of
a
friendly country
(Regazzoni
v.
Sethia)
and contracts illegal.under
a
law which
is
not the
lez soktionis (Kleinwort
v.
Ungarische Baumwolle)?
Is
it possible to reconcile Rule
176,
according
to
which the parties to an English contract are presumed to intend English
currency
to
be the money of account, with the statement that English law
as
the proper law supplies the canons of construction and that “this does
not, of course, mean that English currency
is
the money of account”
(p.
902)?
BonytAon’r
case
might be explained by the fact that the rule given in the
former edition in place
of
the
present Rule
175
is
a
preeurnption rebuttable
871
an
THE
MODERN
LAW
REVIEW
VOL
26
where the debtor is
a
public authority without need to search for the
financial setting of the transaction. Again, is it possible to reconcile the
suggestion that the gold clause in the
Treseder-Urifin
case might have been
held void for uncertainty with the fact that two judges were able to decide
what it meant even if their conclusions did not agree?
This edition repeats the suggestion that contracting out of the Hague
Rules should be regarded as contrary to English public policy, yet
it
would
seem impossible to maintain that Enghh public policy demands the applica-
tion of the Hague Rules to all bills
c
i
lading in the face of the Carriage
of
Goods by Sea Act which limits their application to shipments from
U.K.
ports. It would serm simpler and more elegant to solve the problem by
repeuling section
1
of the Act
so
that the Hague Rules would apply to all
shipments governed by English law. If the other parties to the Brussels
Convention could be persuaded to repeal such
ad
hoc
choice of law clauses
which they have enacted it would become impossible to contract out of the
Hague Rules. Such repeals would also resolve the difficult questions arising
out
of
incorporations of foreign statutes implementing the Brussels Conven-
tion, in particular whether the
ad
hoc
choire of law clauses are also incor-
porated, questions which
are
only very briefly mentioned in this edition
(on pp.
728-729).
Ad
hoc
choice of law clauses also are of special significance in relation
to
renvoi.
If,
e.g.,
the application of the rules as to form of marriage is
controlled by such clauses
so
that some forms are available only to citizens
and other forms prescribed for aliens the reference to the
ler
loci
cslebrntionia
cannot possibly ignore conflict rules built in
For
this purpose. These con-
siderations explain why
renvoi
should be used on the question of fornial
validity of marriage, a situation which is added in this edition to the list of
those where renvoi is recommended. The lengthening of the catalogue
of
situations thought suitable for
rend
and at the same time the shortening
of the list of arguments against
renvoi
indicate that the editors have moved
appreciably closer towards an attitude which involves sacrificing logic to
practical convenience.
If,
as is pointed out on p.
80,
I‘
it is hardly an argu-
ment for the doctrine of total
ienvoi
that it
is
workable only if the other
country rejects it,” it is even more disturbing to find that
renvoi
in any form
works particularly well whenever there is
a
reference to foreign laws which
maintain a segregation of communities.
There are, moreover, elsewhere in this edition indications that the editors
are unconcerned that the solutions they propose are adapted to a system of
capitulations rather than one based on equality and interchangeability of
laws. Thus the discussion of the recent cases in which there has been an
alarming extension of coinmon law marriages-an institution which reflects
the spirit of capitulations-fails to associate itself with the general criticism
to which these cases have been subjected. Instead an attempt is made to
limit these decisions to marriages of members of belligerent occupying forces
or
of civilians acting under their direction. But this was not the reason
given for the decision
in
the Korhanski case: it seems equally unconvincing
to argue that the
dtarkowuki
marriaue had not been upheld as valid at
common law since this case was decided before and not after the change in
the law concerning common law marriages. Again, in the vastly expanded
and correspondingly improved chapter on torts, when advocating substitution
of “the law of the social environrrient of the alleged wrongful act for the
rigid geographical test of the
loczur
delicti,”
the editors refer approvingly
to the dictum of Wightman
J.
in
Bcott
v.
Beymow
which implies that English
residents in Italy form
a
self-contained community living under English law.
The theory of the proper law of the tort, just
as
the doctrine of
relcvoi,
is
suspect
just
because it is adapted to
arts
done
in
a
country with the society
and civilisation of which the parties are entirely unconnected”
or
done ‘&in
an uninhabited country.”
It
is tempting
to
remind the editors here of their
own words, used in
(I
different context (on p.
258),
but surely
of
general
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