Traditional Approaches to Choice of Law

Traditional Approaches to Choice of Law

The cases and rules in this chapter represent the traditional approaches to choice of law that prevailed in the United States in the nineteenth century and first half of the twentieth century. Since then, new theories (discussed in Chapter 3) have emerged, and relatively few scholars defend the “old rules” as originally conceived. Nonetheless, ten or so states adhere to the traditional rules in the torts and contracts contexts, and many more states follow traditional approaches in other areas of law. Even in states that have abandoned traditional rules, these rules form the backdrop that makes the present state of the law more comprehensible.

A.   Torts

       1.   Nonintentional Torts

Alabama Great Southern Railroad v. Carroll

97 Ala. 126, 11 So. 803 (1892)


The plaintiff W. D. Carroll is, and was at the time of entering into the service of the defendant, the Alabama Great Southern Railroad Company, and at the time of being injured in that service, a citizen of Alabama. The defendant is an Alabama corporation operating a railroad extending from Chattanooga in the State of Tennessee through Alabama to Meridian in the State of Mississippi. At the time of the casualty complained of, plaintiff was in the service of the defendant in the capacity of brakeman on freight trains running from Birmingham, Alabama, to Meridian, Mississippi, under a contract which was made in the State of Alabama. The injury was caused by the breaking of a link between two cars in a freight train which was proceeding from Birmingham to Meridian. The point at which the link broke and the injury was suffered was in the State of Mississippi. The evidence tended to show that the link which broke was a defective link and that it was in a defective condition when the train left Birmingham.… The evidence went also to show that the defect in this link consisted in or resulted from its having been bent while cold, that this tended to weaken the iron and in this instance had cracked the link somewhat on the outer curve of the bend, and that the link broke at the point of this crack. It was shown to be the duty of certain employees of defendant stationed along its line to inspect the links attached to cars to be put in trains or forming the couplings between cars in trains at Chattanooga, Birmingham, and some points between Birmingham and the place where this link broke, and also that it was the duty of the conductor of freight trains and the other trainmen to maintain such inspection as occasion afforded throughout the runs or trips of such trains; and the evidence affords ground for inference that there was a negligent omission on the part of such employees to perform this duty, or if performed, the failure to discover the defect in and to remove this link was the result of negligence.…

The only negligence, in other words and in short, which finds support by direction or inference in any tendency of the evidence, is that of persons whose duty it was to inspect the links of the train, and remove such as were defective and replace them with others which were not defective. This was the negligence not of the master, the defendant, but of fellow-servants of the plaintiff, for which at common-law the defendant is not liable.…

This being the common-law applicable to the premises as understood and declared in Alabama, it will be presumed in our courts as thus declared to be the common-law of Mississippi, unless the evidence shows a different rule to have been announced by the Supreme Court of the State as being the common-law thereof. The evidence adduced here fails to show any such thing; but to the contrary it is made to appear from the testimony of Judge Arnold and by the decisions of the Supreme Court of Mississippi which were introduced on the trial below that that court is in full accord with this one in this respect. Indeed, if anything, those decisions go further than this court has ever gone in applying the doctrine of fellow-servants to the exemption of railway companies from liability to one servant for injuries resulting from the negligence of another.…

It is, however, further contended that the plaintiff, if his evidence be believed, has made out a case for the recovery sought under the Employer’s Liability Act of Alabama, it being clearly shown that there is no such, or similar law of force in the State of Mississippi. Considering this position in the abstract, that is dissociated from the facts of this particular case which are supposed to exert an important influence upon it, there cannot be two opinions as to its being unsound and untenable. So looked at, we do not understand appellee’s counsel even to deny either the proposition or its application to this case, that there can be no recovery in one State for injuries to the person sustained in another unless the infliction of the injuries is actionable under the law of the State in which they were received. Certainly this is the well established rule of law subject in some jurisdictions to the qualification that the infliction of the injuries would also support an action in the State where the suit is brought, had they been received within that State.…

But it is claimed that the facts of this case take it out of the general rule which the authorities cited above abundantly support, and authorize the courts of Alabama to subject the defendant to the payment of damages under section 2590 of the Code, although the injuries counted on were sustained in Mississippi under circumstances which involved no liability on the defendant by the laws of that State.

This insistence is in the first instance based on that aspect of the evidence which goes to show that the negligence which produced the casualty transpired in Alabama, and the theory that wherever the consequence of that negligence manifested itself, a recovery can be had in Alabama. We are referred to no authority in support of this proposition, and exhaustive investigation on our part has failed to disclose any.…

The position [that the occurrence of the negligence in Alabama would not justify applying Alabama law] appears to us to be eminently sound in principle and upon logic. It is admitted, or at least cannot be denied, that negligence of duty unproductive of damnifying results will not authorize or support a recovery. Up to the time this train passed out of Alabama no injury had resulted. For all that occurred in Alabama, therefore, no cause of action whatever arose. The fact which created the right to sue, the injury without which confessedly no action would lie anywhere, transpired in the State of Mississippi. It was in that State, therefore, necessarily that the cause of action, if any, arose; and whether a cause of action arose and existed at all or not must in all reason be determined by the law which obtained at the time and place when and where the fact which is relied on to justify a recovery transpired. Section 2590 of the Code of Alabama had no efficacy beyond the lines of Alabama. It cannot be allowed to operate upon facts occurring in another State so as to evolve out of them rights and liabilities which do not exist under the law of the State which is of course paramount in the premises. Where the facts occur in Alabama and a liability becomes fixed in Alabama, it may be enforced in another State having like enactments, or whose policy is not opposed to the spirit of such enactments, but this is quite a different matter. This is but enforcing the statute upon facts to which it is applicable all of which occur within the territory for the government of which it was enacted. Section 2590 of the Code, in other words is to be interpreted in the light of universally recognized principles of private international or interstate law, as if its operation had been expressly limited to this State and as if its first line read as follows: “When a personal injury is received in Alabama by a servant or employee,” &c., &c. The negligent infliction of an injury here under statutory circumstances creates a right of action here, which, being transitory, may be enforced in any other State or country the comity of which admits of it; but for an injury inflicted elsewhere than in Alabama our statute gives no right of recovery, and the aggrieved party must look to the local law to ascertain what his rights are. Under that law this plaintiff had no cause of action, as we have seen, and hence he has no rights which our courts can enforce, unless it be upon a consideration to be presently adverted to. We have not been inattentive to the suggestions of counsel in the connection, which are based upon that rule of the statutory and common criminal law under which a murderer is punishable where the fatal blow is delivered, regardless of the place where death ensues. This principle is patently without application here. There would be some analogy if the plaintiff had been stricken in Alabama and suffered in Mississippi, which is not the fact. There is, however, an analogy which is afforded by the criminal law, but which points away from the conclusion appellee’s counsel desire us to reach. This is found in that well established doctrine of criminal law, that where the unlawful act is committed in one jurisdiction or State and takes effect—produces the result which it is the purpose of the law to prevent, or, it having ensued, punish for—in another jurisdiction or State, the crime is deemed to have been committed and is punished in that jurisdiction or State in which the result is manifested, and not where the act was committed.

Another consideration—that referred to above—it is insisted, entitles this plaintiff to recover here under the Employer’s Liability Act for an injury inflicted beyond the territorial operation of that act. This is claimed upon the fact that at the time plaintiff was injured he was in the discharge of duties which rested on him by the terms of a contract between him and defendant which had been entered into in Alabama, and, hence, was an Alabama contract, in connection with the facts that plaintiff was and is a citizen of this State, and the defendant is an Alabama corporation. These latter facts—of citizenship and domicile respectively of plaintiff and defendant—are of no importance in this connection, it seems to us, further than this: they may tend to show that the contract was made here, which is not controverted, and if the plaintiff has a cause of action at all, he, by reason of them, may prosecute it in our courts. They have no bearing on the primary question of existence of a cause of action, and as that is the question before us, we need not further advert to the fact of plaintiff’s citizenship or defendant’s domicile.

The contract was that plaintiff should serve the defendant in the capacity of a brakeman on its freight train between Birmingham, Alabama, and Meridian, Mississippi, and should receive as compensation a stipulated sum for each trip from Birmingham to Meridian and return. The theory is that the Employer’s Liability Act became a part of this contract; that the duties and liabilities which it prescribes became contractual duties and liabilities, or duties and liabilities springing out of the contract, and that these duties attended upon the execution whenever its performance was required—in Mississippi as well as in Alabama—and that the liability prescribed for a failure to perform any of such duties attached upon such failure and consequent injury wherever it occurred, and was enforceable here because imposed by an Alabama contract notwithstanding the remission of duty and the resulting injury occurred in Mississippi, under whose laws no liability was incurred by such remission. The argument is that a contract for service is a condition precedent to the application of the statute, and that “as soon as the contract is made the rights and obligations of the parties, under the Employer’s Act, became vested and fixed,” so that “no subsequent repeal of the law could deprive the injured party of his rights nor discharge the master from his liabilities,” &c., &c. If this argument is sound, and it is sound if the duties and liabilities prescribed by the act can be said to be contractual duties and obligations at all, it would lead to conclusions the possibility of which has not hitherto been suggested by any court or law writer, and which, to say the least, would be astounding to the profession. For instance: If the act of 1885 becomes a part of every contract of service entered into since its passage, just “as if such law were in so many words expressly included in the contract as a part thereof,” as counsel insist it did, so as to make the liability of the master to pay damages from injuries to a fellow-servant of his negligent employee, a contractual obligation, no reason can be conceived why the law existing in this regard prior to the passage of that act did not become in like manner a part of every contract of service then entered into, so that every such contract would be deemed to contain stipulations for the non-liability of the master for injuries flowing from the negligence of a fellow-servant, and confining the injured servant’s right to damage to a claim against his negligent fellow-servant—the former, in other words, agreeing to look alone to the latter. There were many thousands of such contracts existing in this country and England at the time when statutes similar to section 2590 of our Code were enacted, there were indeed many thousands of such contracts existing in Alabama when that section became the law of this State. Each of these contracts, if the position of plaintiff as to our statute being embodied into the terms of his contract so that its duties were contractual duties, and its liabilities contractual obligations to pay money can be maintained, involved the assurances of organic provisions, State and Federal, of the continued non-liability of the master for the negligence of his servants, notwithstanding the passage of such statutes. Yet these statutes were passed, and they have been applied to servants under pre-existing contracts as fully as to servants under subsequent contracts, and there has never been a suggestion even in any part of the common-law world that they were not rightly so applied. If plaintiff’s contention is well taken, many a judgment has gone on the rolls in this State, and throughout the country, and has been satisfied, which palpably overrode vested rights without the least suspicion on the part of court or counsel that one of the most familiar ordinances of the fundamental law was being violated. Nay more, another result not heretofore at all contemplated would ensue. Contracts for service partly in Alabama might be now entered into in adjoining States where the common-law rule still obtains, as in Mississippi, for instance, where the servant has no right to recover for the negligence of his fellow, and the assumption of this risk under the law becoming, according to the argument of counsel, a contractual obligation to bear it, such contracts would be good in Alabama and as to servants entering into them, our statute would have no operation even upon negligence and resulting injury within its terms occurring wholly in Alabama. And on the other hand, if this defendant is under a contractual obligation to pay the plaintiff the damages sustained by him because of the injury inflicted in Mississippi, the contract could be of course enforced in Mississippi and damages there awarded by its courts, notwithstanding the law of that State provides that there can be no recovery under any circumstances whatever by one servant for the negligence of his fellow employee. We do not suppose that such a proposition ever has been or ever will be made in the courts of Mississippi. Yet that it should be made and sustained is the natural and necessary sequence of the position advanced in this case.

These considerations demonstrate the infirmity of plaintiff’s position in this connection, and serve to show the necessity and propriety of the conclusion we propose to announce on this part of the case. That conclusion is, that the duties and liabilities incident to the relation between the plaintiff and the defendant which are involved in this case, are not imposed by and do not rest in or spring from the contract between the parties. The only office of the contract, under section 2590 of the Code, is the establishment of a relation between them, that of master and servant; and it is upon that relation, that incident or consequence of the contract, and not upon the rights of the parties under the contract, that our statute operates. The law is not concerned with the contractual stipulations, except insofar as to determine from them that the relation upon which it is to operate exists. Finding this relation the statute imposes certain duties and liabilities on the parties to it wholly regardless of the stipulations of the contract as to the rights of the parties under it, and, it may be, in the teeth of such stipulations. It is the purpose of the statute and must be the limit of its operation to govern persons standing in the relation of master and servants to each other in respect of their conduct in certain particulars within the State of Alabama. Mississippi has the same right to establish governmental rules for such persons within her borders as Alabama; and she has established rules which are different from those of our law. And the conduct of such persons toward each other is, when its legality is brought in question, to be adjudged by the rules of the one or the other States as it falls territorially within the one or the other. The doctrine is like that which prevails in respect of other relations, as that of man and wife. Marriage is a contract. The entering into this contract raises up certain duties and imposes certain liabilities in all civilized countries. What these duties and liabilities are at the place of the contract are determinable by the law of that place; but when the parties go into other jurisdictions, the relation created by the contract under the laws of the place of its execution will be recognized, but the personal duties, obligations and liabilities incident to the relation are such as exist under the law of the jurisdiction in which an act is done or omitted as to the legality, effect or consequence of which the question arises.…

The only true doctrine is that each sovereignty, state or nation, has the exclusive power to finally determine and declare what acts or omission in the conduct of one to another, whether they be strangers or sustain relations to each other which the law recognizes, as parent and child, husband and wife, master and servant, and the like, shall impose a liability in damages for the consequent injury, and the courts of no other sovereignty can impute a damnifying quality to an act or omission which afforded no cause of action where it transpired.


Questions and Comments

(1) Why should Alabama pay any attention at all to the law of Mississippi? Why should it ever apply any state’s law but its own? Doesn’t a court have an obligation to achieve a “just” result? And if Alabama’s law (including its conflicts rules) tells it to apply the law of Mississippi to a case, doesn’t it follow either that (a) Alabama has erred, because it should apply its own law, which is more just; or (b) Mississippi law is more just, and Alabama should change its own law?

Justice Cardozo answered these questions in the course of a famous articulation of the same vested rights theory employed in Carroll. In a case in which the question was whether a New York court should apply Massachusetts or New York wrongful death law to an accident that occurred in Massachusetts, Cardozo explained why Massachusetts law would normally govern:

A foreign statute is not law in this state, but it gives rise to an obligation, which, if transitory, follows the person and may be enforced wherever the person may be found.… [I]t is a principle of every civilized law that vested rights shall be protected. The plaintiff owns something, and we help him to get it.… Our own scheme of legislation may be different. We may even have no legislation on the subject. That is not enough to show that public policy forbids us to enforce the foreign right. A right of action is property. If a foreign statute gives the right, the mere fact that we do not give a like right is no reason for refusing to help the plaintiff in getting what belongs to him. We are not so provincial as to say that every solution of a problem is wrong because we deal with it otherwise at home.

Loucks v. Standard Oil Co., 224 N.Y. 99, 120 N.E. 198 (N.Y. 1918); see also Slater v. Mexican Natl. R.R., 194 U.S. 120, 126 (1904) (Holmes, J.) (“The theory of the foreign suit is that although the act complained of was subject to no law having force in the forum, it gave rise to an obligation, an obligatio, which like other obligations follows that person, and may be enforced wherever the person may be found.”).

Are these convincing arguments? By assuming that the right has vested in another state, does Cardozo beg the question of what law creates the right? What benefit, if any, does the forum get from enforcing a foreign-vested right? Why is it important to the vested rights theory to insist that courts apply foreign vested rights but not foreign law? For the classic theoretical defense of the vested rights theory in the United States, see Beale, 1 Conflict of Laws 1-86 (1935). For classic criticisms of Beale’s vested rights theory, see Cook, The Logical and Legal Bases of the Conflict of Laws (1942); Currie, Selected Essays on the Conflict of Laws (1963); Lorenzen, Selected Articles on the Conflict of Laws (1947).

(2) What should be the goals of a body of conflicts law? The traditional answer is, for the most part, uniformity. “The purpose of a conflict-of-laws doctrine is to assure that a case will be treated in the same way under the appropriate law regardless of the fortuitous circumstances which often determine the forum.” Lauritzen v. Larsen, 345 U.S. 571, 591 (1952). Such uniformity has been equated with “fairness to the parties.” H. Goodrich & E. Scoles, Handbook of the Conflict of Laws 5 (1964). But the answer of uniformity, though facile and traditional, is dubious: “After all, if the only purpose of choice-of-law rules is to make the result independent of forum choice, not only must there be choice-of-law rules, but also those rules must be uniform in each possible forum.” Weintraub, Commentary on the Conflict of Laws 3 (2d ed. 1980).

The late Professor Currie suggested “[i]n all solemnity” that in certain cases the law of the state first in alphabetical order be applied. (In order to avoid discrimination and burdening the judges of the state lowest in order by making them determine foreign law all the time, he suggested that the inverse alphabetical order be used for transactions occurring in odd-numbered years.) Currie, Selected Essays on the Conflict of Laws 609 (1963).

It is clear, isn’t it, that Currie’s suggestion would achieve almost complete uniformity of result? (This is assuming, of course, that it will be non-controversial which states have enough contact that their laws should be on the list for consideration.) Moreover, predictability, the avoidance of forum-shopping, and ease of administration, three other goals sometimes mentioned, would be greatly enhanced.

What’s so good about uniformity? If Missouri (or any other state) comes to a conclusion in a conflicts case that it thinks is the right and just result, what role should the desire for uniformity play? If uniformity is achieved by reaching the Missouri result, uniformity is merely superfluous. On the other hand, if Missouri is out of step with the results reached by other states, even after giving due deference to their reasoning, should it give up what is perceived as the just result in order to fall into line with the others? Wouldn’t there have to be powerful arguments for uniformity in order to justify reaching what is seen as an unjust result?

It would seem, then, that there must be unarticulated goals of the conflicts system other than uniformity and its related concepts. Can we be any more specific about what those goals might be, other than to say that the court should reach a result that is “correct” or “just”? See generally Hay, Flexibility Versus Predictability and Uniformity in Choice of Law, 226 Recueil des Cours d’Academie de Droit International 285 (1991).

(3) A principle that may or may not be categorized as an ultimate goal of the conflicts system, but which pervades early conflicts cases, is that of territoriality: Generally speaking, a state has the right to control people and things located within its own borders.

A closely related—and less universally acknowledged—proposition is that states have the right to control the effects of people’s behavior within their borders. For example, if X hits Y over the head with a baseball bat while in Missouri, it is reasonably clear that X may be subject to the criminal law of Missouri for that act. In many cases the law of Missouri will also be the only relevant law with respect to the civil effects of the act—but not always. Assume that X and Y are both citizens of Illinois, traveling into St. Louis only for shopping purposes. We might not be surprised to find that an Illinois court later considering the issue might apply Illinois law, rather than Missouri law, to the question whether one who kills a testator may take under the testator’s will—especially if all the property to pass under the will is located in Illinois. Would Missouri even want its law to apply in such a case? Would the answer to such a question depend on whether it was Illinois or Missouri law that allowed a killer to profit from his own act? Should it matter whether or not Missouri would want its own law applied?

(4) The section of the Alabama Code analyzed in Carroll provided:

When a personal injury is received by a servant or employee in the service or business of the master or employer, the master or employer is liable to answer in damages to such servant or employee, as if he were a stranger, and not engaged in such service or employment,… [w]hen such injury is caused by reason of the negligence of any person in the service or employment of the master or employer, who has the charge or control of any signal, points, locomotive, engine, switch, car, or train upon a railway, or of any part of the track of a railway.

Alabama Civil Code §2590(5) (1886) (emphasis added). On its face, doesn’t this provision apply to the facts of Carroll? After all, it extends the master’s liability to torts caused by “any” fellow servant, and it contains no geographical limitation. Why did the court read the statute’s first sentence as if it included the words “personal injury is received in Alabama”? Was this a fair reading of the Alabama legislature’s intent? Did the Alabama legislature have the territorial “principles of private international or interstate law” in mind when it enacted the statute? (Note that if the courts do not read some limiting principle into the statute, the statute would also apply to torts in Mississippi involving only Mississippi parties.) Or would the legislature have likely wanted the law to apply to people like Carroll—a citizen of Alabama, working for an Alabama railroad, entering a contract to do so in Alabama, and performing a good deal of the contract in Alabama? Do you think the legislature gave the choice-of-law question any thought at all? How should courts determine the geographical scope of a statute in the face of legislative silence?

(5) “The fact which created the right to sue, the injury … transpired in the State of Mississippi. It was in that State, therefore, necessarily that the cause of action, if any, arose.…” Why the “therefore”? Didn’t the negligence equally create the right to sue, since an injury without negligence would not have been tortious? Which would you rather give up, your lungs or your heart? The “last act” may determine, of course, when the tort takes place (although not always) for such things as statute-of-limitations purposes.

If the court’s reasoning is inadequate, how should you determine where a tort “occurs”? Can this question be answered without knowing why the place of occurrence supplies the governing law?

(6) What are the merits of the plaintiff’s arguments that his contract with the defendant incorporated the Alabama statute? What is the court’s answer to those arguments? “It is commonly said that existing laws at the time and place of the making of a contract enter into and form a part of the contract as fully as if expressly incorporated therein.” Williston on Contracts §615 (3d ed. 1961). If the rule is applicable here, its effect may turn on two possible constructions of law: (a) The parties are in fact presumed to have intended the controlling law to be made part of their contract; or (b) regardless of their intentions, their contract will be interpreted to incorporate the law existing at the time of formation. If the first interpretation is correct, does it help Carroll? If the law of Alabama was to be incorporated into the contract, isn’t it first necessary to interpret the law of Alabama—which the court decided did not apply to Mississippi accidents? On the other hand, if the second interpretation is correct and the incorporation rule is merely a fiction, imposed on the parties regardless of their true intent, should it be imposed regardless of where the accident occurred? Don’t we need to know why the law was incorporated, despite the parties’ intent, to know whether the rule would be applicable in a conflicts case?

Conceding, for a moment, that the contract may incorporate existing statutory law for conflicts purposes, why should the rule be, as Williston puts it, that the relevant laws are those “existing … at the time and place of the making of a contract”? If two Michiganders, both conducting business in Michigan, conclude a deal and sign a contract during a weekend at an Ontario hunting lodge, should the law of Ontario be presumed to be incorporated? Isn’t it clear that the fiction of incorporation was designed without the subject of conflicts in mind and should not be mentioned further in this book?

But such is not to be. Consider the treatment given by another court to the question of what effect a statute should have on the interpretation of a contract. In Levy v. Daniels’ U-Drive Auto Renting Co., 108 Conn. 333, 143 A. 163 (1928), the defendant had rented an auto in Connecticut, which by statute imposed vicarious liability on persons leasing cars for damages caused to others by the lessee. The lessee in Levy caused an accident in Massachusetts, which imposed no such liability on the lessor. The question was whether the law of Massachusetts, the place of the accident, or the law of Connecticut, the place of the rental, would apply. In deciding that the lessor was contractually obligated to the other party to the accident, the court said:

If the liability of this defendant under this statute is contractual, no question can arise as to the plaintiff’s right to enforce this contract.… The law inserted in the contract this provision. The statute did not create the liability; it imposed it in case the defendant voluntarily rented the automobile. Whether the defendant entered into this contract of hiring was his own voluntary act; if he did he must accept the condition upon which the law permitted the making of the contract.

108 Conn. at 333, 143 A. at 165.

So far we have talked about the contract theory as a means of avoiding the place-of-injury conflicts rule for torts. Assuming that the question is one of contracts, is it clear that Alabama law should control the contract, at least with respect to an accident occurring in Mississippi? The issue can probably be avoided by assuming that if it were clear that the contract was intended to incorporate the Alabama statute and make it applicable to Mississippi accidents, the contract law of Mississippi would probably recognize the cause of action.

Note that when the place of the accident applies to the issue of rental car liability, companies renting cars in states that do not impose vicarious liability can suddenly find themselves subject to liability depending on the state where a lessee might happen to enter. Would that be a more satisfactory solution to the problem? Apparently Congress didn’t think so. In 2005, it enacted the Graves Amendment, 49 U.S.C. §30106, which preempts state statutes like the one at issue in Connecticut. Under the Graves Amendment, car rental entities can no longer be held vicariously liable for lessee accidents. Federal statutes preempting state laws can eliminate choice-of-law problems within the United States but at the cost of preventing state experimentation with diverse legal solutions. As you read through the materials in the next few chapters, consider whether the benefits to federalism are worth the choice-of-law costs in each context.

(7) In the final paragraph of the court’s opinion, a rather absolute rule is laid down with respect to whose law is to apply in cases like Carroll. Does the rule have an intuitive appeal? If so, what kinds of qualifications, if any, should be put on the rule? Should the procedural law of the place of injury apply? Including the size of the paper on which pleadings are typed? If the plaintiff in a tort case is a corporation and the forum state has a rule forbidding unregistered foreign corporations that do business in the state from using its courts (a common rule), should the more permissive rule of the state of injury apply to that issue?

Is there any way to characterize issues for which the law of the place of injury seems more appropriate, as opposed to those for which the law of the forum is more appealing?

(8) Carroll rules that Mississippi law applies because “[t]he fact which created the right to sue, the injury without which confessedly no action would lie … transpired in the State of Mississippi.” 97 Ala. at 134, 11 So. at 806. The rule that the applicable law in non-intentional torts is the law of the place where the injury occurred continues to be applied to similar circumstances. In Tolman v. Stryker Corp., 926 F. Supp. 2d 1255 (D. Wyo. 2013), the plaintiff broke his hip in an accident in Wyoming. He went to a hospital in Montana, where a doctor inserted a nail into his femur as part of the treatment. The nail broke when the plaintiff was in Wyoming, and he sued in Wyoming. The defendant (the manufacturer of the nail) claimed that Montana law should apply, under which the claim is time-barred. According to Carroll’s reasoning, which law should apply?

Below (and throughout this chapter) are excerpts from the American Law Institute’s Restatement of Conflict of Laws (1934). The Restatement’s reporter and principal author, Harvard Law School professor Joseph Beale, was a proponent of the “vested rights” theory of which Carroll is an exemplar. While the Restatement gives a flavor of the traditional approach to choice of law in the American states, not all American jurisdictions embraced its principles in every respect.

Selections from the First Restatement of Conflicts, on Wrongs

§§377-379, 382, 384-387, 390-391, 398-399, 412, 421 (1934)

§377. The Place of Wrong

The place of wrong is in the state where the last event necessary to make an actor liable for an alleged tort takes place.…


Note: Summary of Rules in Important Situations Determining Where a Tort Is Committed

1. Except in the case of harm from poison, when a person sustains bodily harm, the place of wrong is the place where the harmful force takes effect upon the body.…

2. When a person causes another voluntarily to take a deleterious substance which takes effect within the body, the place of wrong is where the deleterious substance takes effect and not where it is administered. [Why?].…

3. When harm is caused to land or chattels, the place of wrong is the place where the force takes effect on the thing.…

4. When a person sustains loss by fraud, the place of wrong is where the loss is sustained, not where fraudulent representations are made.…

5. Where harm is done to the reputation of a person, the place of wrong is where the defamatory statement is communicated.…

§378. Law Governing Plaintiff’s Injury

The law of the place of wrong determines whether a person has sustained a legal injury.…

§379. Law Governing Liability-Creating Conduct

Except as stated in §382, the law of the place of wrong determines

(a) whether a person is responsible for harm he has caused only if he intended it, (b) whether a person is responsible for unintended harm he has caused only if he was negligent, (c) whether a person is responsible for harm he has caused irrespective of his intention or the care which he has exercised.…

§382. Duty or Privilege to Act

(1) A person who is required by law to act or not to act in one state in a certain manner will not be held liable for the results of such action or failure to act which occur in another state.

(2) A person who acts pursuant to a privilege conferred by the law of the place of acting will not be held liable for the results of his act in another state.…


5. By the law of X, an attacked party may lawfully stand his ground and defend himself by killing if necessary; by the law of Y, he should retire without killing if it is safe to do so. A, in X, is attacked by B who apparently intends to kill A. A reasonably believes that the only way he can save his life without retiring is to shoot B. He stands his ground, shoots at B, misses him and hits C in state Y. If he shoots at B with reasonable care to avoid hitting third persons, he is not liable to C.…


c. Significance of privilege as basis for immunity. The word “privilege” denotes the fact that conduct which, under ordinary circumstances, would subject an actor to liability, under particular circumstances does not subject him thereto (see Restatement of Torts, §10). It is necessary to distinguish between a situation in which an actor is not liable because of a privilege, and situations in which he is not liable because the policy of the law is not to impose liability for harm caused by a certain general type of conduct. Thus, one who intentionally shoots another is, unless privileged, liable for the harm caused. If the actor in such a case is privileged, he is not liable, but this is because of some particular circumstances which make the case exceptional. On the other hand, if a person while driving his car with due care strikes a pedestrian and injures him, he is not liable; but in this situation, the actor is immune from liability, not because of some particular circumstances which make the case an exception to the general rule, but because the general rule is that liability is imposed in such cases only when the actor has been at fault. This distinction is important in the Conflict of Laws because, as stated in §379, the general question of the liability-creating character of the actor’s conduct is determined by the law of the place of wrong, while under the statement in Subsection (2) of this Section, the question of privilege is determined by the law of the place where the actor acts.…

[Question: Why is it any more significant that a state gives someone a “privilege,” than that the policy of its law is not to impose liability for a certain type of conduct?]

§384. Recognition of Foreign Cause of Action

(1) If a cause of action in tort is created at the place of wrong, a cause of action will be recognized in other states.

(2) If no cause of action is created at the place of wrong, no recovery in tort can be had in any other state.…

§385. Contributory Negligence

Whether contributory negligence of the plaintiff precludes recovery in whole or in part in an action for negligent injury is determined by the law of the place of wrong.

§386. Liability to Servant for Tort of Fellow Servant

The law of the place of wrong determines whether a master is liable in tort to a servant for a wrong caused by a fellow servant.…

§387. Vicarious Liability

When a person authorizes another to act for him in any state and the other does so act, whether he is liable for the tort of the other is determined by the law of the place of wrong.…

§390. Survival of Actions

Whether a claim for damages for a tort survives the death of the tortfeasor or of the injured person is determined by the law of the place of wrong.…

§391. Right of Action for Death

The law of the place of wrong governs the right of action for death.… [Question: Does this mean that if X shoots Y in Nebraska, which limits recoveries for wrongful death, Y ought to have himself transported to New York before he dies because New York has no such limitation?]

§398. Compensation Under Act of State of Employment

A workman who enters into a contract of employment in a state in which a Workmen’s Compensation Act is in force can recover compensation under the Act in that state for bodily harm arising out of and in the course of the employment, although the harm was suffered in another state, unless the Act provides in specific words or is so interpreted as to apply only to bodily harm occurring within the state.…

[Question: Does this provision boil down to anything more than that the person can recover unless he can’t? If not, what is the meaning of the words, “unless the Act … is so interpreted as to apply only to bodily harm occurring within the state”? Cf. the treatment of this issue in the Carroll case above.]

§399. Compensation Under Act of State of Harm

Except as stated in §401, a workman may recover in a state in which he sustains harm under the Workmen’s Compensation Act of that state although the contract of employment was made in another state, unless the Act provides in specific words or is so interpreted as to apply only when the contract of employment is made within the state.…

§412. Measure of Damages for Tort

The measure of damages for a tort is determined by the law of the place of wrong.…

§421. Exemplary Damages

The right to exemplary damages is determined by the law of the place of wrong.…

       2.   Intentional Torts

Carroll involved an unintentional tort. Should the rules be different when the defendant’s wrongful behavior is intentional? That question is considered in Bullard v. MRA Holding.

Bullard v. MRA Holding, LLC et al.

292 Ga. 748, 740 S.E.2d 622, 41 Media L. Rep. 2708, 13 FCDR 876 (2013)

[Plaintiff, a 14-year-old from Georgia, exposed her breasts to two men who filmed her while on spring break in Florida. Defendants subsequently bought and used this image in a pornographic video without plaintiff’s consent. Defendants claimed that Florida law applies because the video was shot in Florida. The court ruled that Georgia law applies because “the place of the wrong” is where the injury was sustained.]


This case is before us based upon questions certified to this Court by the United States District Court for the Northern District of Georgia regarding the availability and scope of an appropriation of likeness claim under Georgia law. [Plaintiff had initially brought this claim to the U.S. District Court. Although the District Court ruled that Georgia law controls, it certified this case to the Georgia Supreme Court because, among other reasons, it could not determine whether plaintiff’s claim was viable under Georgia state law.] Because we conclude that such a claim is available to the plaintiff under the facts presented here, and because we conclude that such a claim is controlled by Georgia law even where, as here, some of the activities that ultimately gave rise to the claim took place in Florida, we outline the parameters of the claim below.

The alleged facts of this case as reported by the District Court indicate the following: In the spring of 2000, fourteen-year-old Lindsay Bullard exposed her breasts to two unknown men in a parking lot in Panama City, Florida. [Bullard, a middle school student from Georgia, was in Florida for spring break.] Bullard was aware that the men were videotaping her at the time and expressed no objection to being videotaped. The two men and Bullard had no discussion about what future use the men might make of the videotape. MRA Holding LLC, (hereinafter “MRA”), obtained the recording and included it in its College Girls Gone Wild video series. MRA also used a still photo of Bullard that was taken from the video clip and placed it in a prominent position on the cover of the video box for the College Girls Gone Wild video that it later marketed and sold nationwide. On that image, MRA blocked out Bullard’s breasts and superimposed an inscription, “Get Educated!” in that block. The inscription arguably gave the appearance that Bullard was making this statement. MRA did not obtain Bullard’s permission to use the video footage of her in the College Girls Gone Wild video or to use her photo on the video box cover. Television and internet advertisements were aired that incorporated Bullard’s image. Bullard’s image had no commercial value before appearing on the cover of the College Girls Gone Wild video. Bullard suffered humiliation and injury to her feelings and reputation as a result of the aforementioned use of her image.

Bullard sued MRA in the United States District Court for the Northern District of Georgia for, among other things, appropriation of her likeness. MRA moved for summary judgment, and, in order for the District Court to decide the motion with respect to Bullard’s claim for appropriation of likeness, it certified the following questions to this Court:

Does Georgia law govern Bullard’s appropriation of likeness claim when:

    A. Bullard, whose domicile is in Georgia, has been videotaped in Florida;

    B. when her clip has been included in a video including images of other such girls, and her image has been placed prominently on the cover of the marketing materials, with a statement arguably attributed to Bullard that she did not make;

    C. when that video, along with Bullard’s image and statement on the cover of the video, has been advertised nationally, including in Georgia, and when the video has been marketed and sold nationwide, including in Georgia; and

    D. when the emotional injury to Bullard, such as humiliation, ridicule, and other negative consequences, has occurred in Georgia?

    E. If Georgia law does not control, which state’s law does govern the dispute in this case?

1. Does Georgia law govern Bullard’s appropriation of likeness claim?

Yes. As an initial matter, because Bullard filed her lawsuit in a Georgia District Court, the Georgia federal court is to apply Georgia’s conflict of laws rules. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487 (1941) (“The conflict of laws rules to be applied by the federal court in [the forum state] must conform to those prevailing in [that] state[’s] courts.”). In this connection, for over 100 years, the state of Georgia has followed the doctrine of lex loci delicti in tort cases, pursuant to which “a tort action is governed by the substantive law of the state where the tort was committed.” Dowis v. Mud Slingers, Inc., 279 Ga. 808, 809 (2005). See also id. at 811 (“The doctrine of lex loci delicti has served the resolution of conflict of laws issues in tort actions in [Georgia] for nearly 100 years”). The place where the tort was committed, or, “the locus delicti, is the place where the injury sustained was suffered rather than the place where the act was committed, or, as it is sometimes more generally put, it is the place where the last event necessary to make an actor liable for an alleged tort takes place.” Risdon Enter., Inc. v. Colemill Enter., Inc., 172 Ga. App. 902, 903(1) (1984) (citation and punctuation omitted).

Applying the doctrine to this multi-state commercial appropriation of likeness claim, we conclude that the substantive law of Georgia governs MRA’s potential liability. Although the initial video of Bullard was shot in Florida, MRA distributed Bullard’s image throughout the United States, including in Georgia. Bullard lived and attended school in Georgia, where she would have sustained any injury that resulted from the distribution of her image. Since Georgia is the state “where the injury sustained was suffered,” Georgia law controls here. See also Martin Luther King, Jr., Ctr. For Soc. Change, Inc. v. Am. Heritage Prods., Inc., 250 Ga. 135 (1982) (where plaintiff was domiciled in Georgia, Court applied Georgia law to claims arising from defendant marketing and selling plastic busts bearing Dr. Martin Luther King’s likeness across the country).

[The Court then ruled that the plaintiff has a cause of action based on Georgia law for appropriation of her image, that she may recover damages should a jury rule for her, and that she did not consent to distributing her images for commercial purposes.]

Certified questions answered.

All the Justices concur.


Questions and Comments

(1) The Georgia Supreme Court emphasizes that “for over 100 years, the state of Georgia has followed the doctrine of lex loci delicti in tort cases.” 292 Ga. at 749. As of the year 2013, only ten states continue to adhere to the First Restatement approach to choice of law for tort cases. See Symeonides, Choice of Law in the American Courts in 2013: Twenty-Seventh Annual Survey, 62 Am. J. Comp. L. (forthcoming 2014). Articulate modern decisions justifying this approach include Spinozzi v. ITT Sheraton Corp., 174 F.3d 842 (7th Cir. 1999) (Posner, J.); Paul v. National Life, 352 S.E.2d 550 (W. Va. 1986), reprinted at page 280 infra; Fitts v. Minnesota Mining & Mfg. Co., 581 So. 2d 819 (Ala. 1991); and Winters v. Maxey, 481 S.W.2d 755 (Tenn. 1972).

(2) A defense from a different quarter may be found in Cavers, The Choice-of-Law Process (1965), based on a series of lectures at the University of Michigan. Cavers presents five imaginary cases and the opinions of various “judges,” all prominent conflicts scholars. Each of the opinions was shown to the real-life professorial counterpart of the fictional judge and was revised to meet his reactions. In reaction, Professor Griswold’s defense of the traditional system more or less boils down to three points:

       a)   If the applicable law is not independent of the forum in which the action is brought, lawyers will not be able to advise their clients as to what course to pursue.

       b)   It might be advantageous to plaintiffs to forum-shop or file multiple lawsuits.

       c)   The notion of “law” is unitary, and a system that allows results to differ on the basis of forum is therefore not law.

Do these criticisms stand up to close inspection? Take the first defense. Presumably it is important for parties to know as much as possible about their prospects in court before they get to court. This allows planning and probably encourages out-of-court settlement. But how often will the plaintiff be able to obtain jurisdiction over the defendant in more than one or two states? And how often will the potential for differing results be realized—that is, won’t courts from different states very often have the same opinion as to the just result, even if they abandon lex loci? And finally, if it is assumed that the plaintiff will choose the forum whose conflicts principles are most favorable to the plaintiff’s position, isn’t the only uncertainty remaining that of predicting what that particular forum will do? After a state has settled on the conflicts principles it prefers, is the uncertainty likely to be any greater than in any other kind of case?

(3) What’s wrong with forum-shopping? We are all taught during our first year in law school that it is evil and that Erie Railroad v. Tompkins conquered it. But there are obvious differences, aren’t there, between the kind of forum-shopping that Erie prevents (federal versus state court) and the kind that Professor Griswold would like to do away with? For one, Erie rested in part on the absence of lawmaking authority in the federal courts—that is, by applying a federal common law to cases without federal issues in them, the federal courts were making law, even though the Constitution did not give the federal government power to make law in these areas (or, if it did, allocated that power to the Congress). But when the question is that of forum-shopping among states that have some connection with the underlying dispute, is there any question about the lawmaking authority of both states?

None of the above, of course, demonstrates that forum-shopping is good; rather a mere distinction is made between two types of forum-shopping. What are the arguments against interstate forum-shopping? It may be felt that the plaintiff has an unfair advantage by being able to choose the forum with the favorable law. But doesn’t the very fact that one forum’s law favors the plaintiff legitimate the plaintiff’s position? Assume plaintiff chooses State A, with favorable law. Presumably State A adheres to its law because it thinks that law is best. Assume further that State B is another possible forum for the plaintiff, and that forum B has law that is unfavorable to the plaintiff. Should State A deliberately choose what it sees as the wrong result in order to discourage the plaintiff from suing there?

Perhaps the arguments above, however, are wide of the mark. On a statistical basis, across the United States, forum-shopping by plaintiffs to obtain more favorable controlling law should increase the number of times plaintiffs recover, without increasing the intrinsic merits of their cases. Thus, while State A in the argument above might view State B’s choice-of-law rule as wrong, but essentially a problem for State B, a nationwide viewpoint might see things in terms of systemic prejudices in favor of plaintiffs or defendants. Is there any way to choose between these two viewpoints?

Doesn’t Professor Griswold’s anxiety about the unitary nature of law arise not from our conflicts doctrines but from the fact that we have different political units that create law? Is this a fact to bemoan or to applaud?

(4) For very different but somewhat sympathetic accounts of a “rights-based” approach to choice of law, see Brilmayer, Rights, Fairness, and Choice of Law, 99 Yale L.J. 1277 (1989); Dane, Vested Rights, Vestedness and Choice of Law, 96 Yale L.J. 1191 (1987).

(5) §377 of the First Restatement of Conflict of Laws defines “the place of wrong” as “the state where the last event necessary to make an actor liable for an alleged tort takes place.” The Georgia Supreme Court interprets the rule to mean that the place of wrong is “where the injury was sustained.” 292 Ga. at 751. Is this an appropriate interpretation? Under the plaintiff’s chosen cause of action (appropriation of likeness), didn’t the “last event necessary” for the tort (the filming) occur in Florida? The court’s interpretation could also incentivize plaintiffs to forum-shop by arguing that “the place where the injury is suffered” is “where the plaintiff files suit,” because the injury is felt where the plaintiff is. For a decision interpreting lex loci delicti as the law of the place of the wrongful conduct instead of the place where the injury is sustained, see Marra v. Bushee, 317 F. Supp. 972 (D. Vt. 1970), rev’d on other grounds, 447 F.2d 1282 (2d Cir. 1971).

B.   Contracts

Selections from the First Restatement of Conflicts, on Contracts

§§311-312, 314-315, 323, 325-326, 332-336, 340, 355, 358, 360-361 (1934)

§311. Place of Contracting

The law of the forum decides as a preliminary question by the law of which state questions arising concerning the formation of a contract are to be determined, and this state is, in the Restatement of this Subject, called the “place of contracting.”…


d. Determination of “place of contracting.” Under its Conflict of Laws rules, in determining the place of contracting, the forum ascertains the place in which, under the general law of Contracts, the principal event necessary to make a contract occurs. The forum at this stage of the investigation does not seek to ascertain whether there is a contract. It examines the facts of the transaction in question only so far as is necessary to determine the place of the principal event, if any, which, under the general law of Contracts, would result in a contract. Then, and not until then, does the forum refer to the law of such state to ascertain if, under that law, there is a contract, although of course there normally will be a contract unless the local law of Contracts of the state to which reference is thus made differs from the general law of Contracts as understood at the forum.…

[Question: Why does the forum use the general law of contracts rather than its own law or the law of some other jurisdiction? Is the general law of contracts superlaw? What is the general law of contracts? Would it matter if the states involved include Saudi Arabia or the People’s Republic of China?]

§312. Formal Contract

Except as stated in §313, when a formal contract becomes effective on delivery, the place of contracting is where the delivery is made.


a. Formal contracts are contracts under seal, recognizances and negotiable instruments (see Restatement of Contracts, §7), and other contracts which are given by statute the character of formal contracts.…

§314. Formal Contract Completed by Mail or Carriage

When a document embodying a formal contract is to be delivered by mail or by a common carrier, the place of contracting is where the document is posted or is received by the carrier.

§315. Formal Contract Delivered by Agent

When a document embodying a formal contract is delivered through an agent of the promisor, the place of contracting is where the agent delivers it.

[Why this distinction between methods of delivery?]

§323. Informal Unilateral Contract

In the case of an informal unilateral contract, the place of contracting is where the event takes place which makes the promise binding.


    1. An offer of reward for the arrest of a felon is published in state X. The felon is arrested in response to the offer, in state Y. The contract for reward is made in Y.

    2. A father in state X promises his son $10,000 if he marries M. The son marries M in state Y. The contract for payment of the money is made in Y.…

§325. Informal Bilateral Contract

In the case of an informal bilateral contract, the place of contracting is where the second promise is made in consideration of the first promise.


1. A and B being in state X, A offers to buy B’s horse for one hundred dollars, the offer to remain open for ten days. Five days later A meets B in state Y and B there accepts A’s offer. The contract for the sale of the horse is made in Y.

§326. Acceptance Sent from One State to Another

When an offer for a bilateral contract is made in one state and an acceptance is sent from another state to the first state in an authorized manner the place of contracting is as follows:

            (a) If the acceptance is sent by an agent of the acceptor, the place of contracting is the state where the agent delivers it;

            (b) if the acceptance is sent by any other means, the place of contracting is the state from which the acceptance is sent.…


1. A in state X offers by mail to pay B in state Y $100 for a certain horse if B will agree to sell the horse. B mails a letter of acceptance in state Z. The letter is carried through the mails and delivered by a postman to A in X. The place of contracting for the sale of the horse is Z.


b. Acceptance by telegraph. When an acceptance is authorized to be sent by telegraph, the place of contracting is where the message of acceptance is received by the telegraph company for transmission.

c. Acceptance by telephone. When an acceptance is to be given by telephone, the place of contracting is where the acceptor speaks his acceptance.…

§332. Law Governing Validity of Contract

The law of the place of contracting determines the validity and effect of a promise with respect to

            (a) capacity to make the contract;

            (b) the necessary form, if any, in which the promise must be made;

            (c) the mutual assent or consideration, if any, required to make a promise binding;

            (d) any other requirements for making a promise binding;

            (e) fraud, illegality, or any other circumstances which make a promise void or voidable;

            (f) except as stated in §358, the nature and extent of the duty for the performance of which a party becomes bound;

            (g) the time when and the place where the promise is by its terms to be performed;

            (h) the absolute or conditional character of the promise.…

§333. Capacity to Contract

The law of the place of contracting determines the capacity to enter into a contract.


a. Distinction between capacity to make contract and capacity to transfer property. There is a distinction between capacity to make a contract and capacity to transfer property. The capacity to transfer land is governed by the law of the state where the land is (see §216), but capacity to make a contract for the transfer of land is governed by the law of the place of contracting. So too, capacity to transfer a chattel is governed by the law of the state where the chattel is at the time of the conveyance (see §255), but capacity to make a contract for the transfer of a chattel is governed by the law of the place of contracting.


1. A, a married woman, contracts in state X to transfer to B land in state Y. By the law of X, a married woman has capacity to make such a contract; by the law of Y, she has no capacity to make such a contract, but she can transfer her land. The contract will be specifically enforced in a court of Y.

2. A, a married woman, contracts in state X to sell to B a horse then in state Y. By the law of Y, title to a chattel passes as the result of a valid contract to sell. By the law of X, a married woman has capacity to contract for the sale of a chattel; by the law of Y, she has not. Title to the horse passes to B who is obligated to pay for it according to the law of X.

§334. Formalities for Contracting

The law of the place of contracting determines the formalities required for making a contract.


b. Statutes of frauds. The requirements of writing may be a requirement of procedure or a requirement of validity, or both. If, for instance, the statute of frauds of the place of contracting is interpreted as meaning that no evidence of an oral contract will be received by the court, it is a procedural statute, and inapplicable in the courts of any other state (see §598). If, however, the statute of frauds of the place of contracting is interpreted as making satisfaction of the statute essential to the binding character of the promise, no action can be maintained on an oral promise there made in that or any state; and if the statute of frauds of the place of contracting makes an oral promise voidable, and the promisor avoids such a promise, the same result follows. If the statute of frauds of the place of contracting is procedural only and that of the forum goes to substance only, an oral contract will be enforced though it does not conform to either statute.

§335. Sealed Instruments

The law of the place of contracting determines whether an instrument alleged to be a contract under seal is effectively sealed; whether it is duly executed and delivered; whether it is valid without consideration, and if not whether consideration has been given.

§336. Negotiable Instruments

The law of the place of contracting determines whether a mercantile instrument is negotiable, whether it is duly executed and delivered, whether it is valid without consideration, and if not, whether consideration has been given.…

§340. Contracts to Transfer or to Convey Land

The law of the place of contracting determines the validity of a promise to transfer or to convey land.…

§355. Place of Performance

The place of performance is the state where, either by specific provision or by interpretation of the language of the promise, the promise is to be performed.


a. The place of performance is often fixed by the contract. If the place of performance is not stated in specific words in the contract, it must be determined by construction and interpretation. A contract may be made up of several promises, each of which has its own place of performance which is different from that of the other promises.…

§358. Law Governing Performance

The duty for the performance of which a party to a contract is bound will be discharged by compliance with the law of the place of performance of the promise with respect to:

            (a) the manner of performance;

            (b) the time and locality of performance;

            (c) the person or persons by whom or to whom performance shall be made or rendered;

            (d) the sufficiency of performance;

            (e) excuse for non-performance.


b. Practical line separating question of obligation from question of performance. While the law of the place of performance is applicable to determine the manner and sufficiency and conditions under which performance is to be made, it is not applicable to the point where the substantial obligation of the parties is materially altered. As stated in §332, Comment c, there is no logical line which separates questions of the obligation of the contract, which is determined by the law of the place of contracting, from questions of performance, determined by the law of the place of performance. There is, however, a practical line which is drawn in every case by the particular circumstances thereof. When the application of law of the place of contracting would extend to the determination of minute details of the manner, method, time and sufficiency of performance so that it would be an unreasonable regulation of acts in the place of performance, the law of the place of contracting will cease to control and the law of the place of performance will be applied. On the other hand, when the application of the law of the place of performance would extend to a regulation of the substance of the obligation to which the parties purported to bind themselves so that it would unreasonably determine the effect of an agreement made in the place of contracting, the law of the place of performance will give way to the law of the place of contracting.…

§360. Illegality of Performance

(1) If performance of a contract is illegal by the law of the place of performance at the time for performance, there is no obligation to perform so long as the illegality continues.

(2) If the legality of performance is temporary and the obligation of the contract still continues, whether the contract must be performed within a reasonable time after its performance becomes legal depends upon the law of the place of performance.…

§361. What Amounts to Performance

The law of the place of performance determines the details of the manner of performing the duty imposed by the contract.


1. A agrees to sell and B to buy goods to be inspected in state X. The law of X determines the method of inspection.…

Poole v. Perkins

126 Va. 331, 101 S.E. 240 (1919)

KELLY, J., delivered the opinion of the court.

On January 1, 1912, W. T. Poole and his wife F. D. Poole executed a joint promissory negotiable note to the order of Marvin Perkins. Poole and wife and Perkins at that time resided and were domiciled in the city of Bristol, Tennessee. More than a year after the execution of the note, but prior to the institution of this suit, all of the parties, makers and payee, became and since remained residents of and domiciled in Virginia. The note was dated, signed and delivered in Tennessee, but upon its face was payable at a bank in the city of Bristol, Virginia.

According to the laws of the State of Tennessee in force at the time of the execution and delivery of the note, and for some time thereafter, the contracts of a married woman were voidable and could not be enforced against her where there was a plea of coverture, but at the time of the institution of this suit the disability of coverture had been removed by statute in Tennessee so far as concerns the contracts of married women subsequent to the passage of the statute. This is a proceeding by notice of motion brought by Perkins against Mrs. F. D. Poole in the Circuit Court of Wythe county to recover judgment on the note. All matters of law and fact having been submitted to the court without the intervention of a jury, a judgment was rendered against her, and she thereupon obtained this writ of error.

There were other issues in the lower court, but the sole question before us is whether Mrs. Poole’s common law disability of coverture at the time of the execution of the note can be successfully relied upon by her as a defense.

If the note had been made payable in Tennessee, it is clear that her plea of coverture would have been good. The reason and authority for this proposition are perfectly familiar and require no elaboration or citation. If the obligation can be enforced against her at all, it is because the note was payable in Virginia. Does the fact that it was so payable enable us to apply the law of this State in determining her capacity to make the contract? If so, it is conceded that she was liable, and that the judgment complained of is right.

It would be idle to say that the question is free from difficulty. There are substantial reasons for a difference of legal opinion and the authorities upon the subject are by no means in harmony. The exact question has never been decided in this State. It would be impossible in an opinion of reasonable length to review all of the authorities bearing upon the subject, and it would perhaps be unprofitable to do so if such a thing were feasible.

In the case of Freeman’s Bank v. Ruckman, Judge Moncure announced the following general rule upon which there is practically no conflict of opinion:

It is a general rule that every contract as to its validity, nature, interpretation and effect, or, as they may be called, the right, in contradistinction to the remedy, is governed by the law of the place where it is made, unless it is to be performed in another place, and then it is governed by the law of the place where it is to be performed.

This familiar and well settled rule, however, cannot be said to be conclusive of the instant case because as the same was applied by Judge Moncure, and as most commonly illustrated by decided cases, it does not relate specifically to the capacity of the parties to make a contract, but to the validity and effect of a contract made by concededly competent parties.

Prof. Raleigh C. Minor, in his excellent “Conflict of Laws,” says at page 410:

The only law that can operate to create a contract is the law of the place where the contract is entered into (lex celebrationis). If the parties enter into an agreement in a particular State the law of that State alone can determine whether a contract has been made. If by the law of that State no contract has been made, there is no contract. Hence, if by the lex celebrationis the parties are incapable of making a binding contract there is no contract upon which the law of any other State can operate. It is void ab initio.

And the author in support of the text quotes from the opinion in Campbell v. Crampton, 2 Fed. 417, 423, as follows:

Upon principle, no reason can be alleged why a contract, void for want of capacity of the party at the place where it is made, should be held good because it provides that it shall be performed elsewhere, and nothing can be found in any adjudication or text book to support such a conclusion. It is a solecism to speak of that transaction as a contract which cannot be a contract because of the inability of the persons to make it such.

Strong support for the opinion thus advanced is also found in [several cases].

In opposition to the above view is the following pronouncement by one of the most eminent of Virginia law writers, Prof. John B. Minor:

The law which is to govern in relation to the capacity of parties to enter into a contract is much disputed by the continental jurists of Europe. In general, however, they hold that the law of the party’s domicile ought to govern. But the doctrine of the common law is well established both in England and America that the capacity of parties to contract is with some few exceptions determined by the lex loci contractus—that is, the law of the place with reference to which the contract is made, which is usually the place where it is made, unless it is to be performed in another place or country, and then the law of that country.

We are disposed to accept the latter as the rule applicable to the instant case, for reasons which we shall now point out.

It is to be observed, in the outset, that with practical unanimity the authorities, even those relied upon by the plaintiff in error, hold that the disability of coverture arising from the law of the married woman’s domicile does not follow her into other States, and that if she goes into another State than that of her domicile and makes a contract valid by and to be performed in accordance with the laws of such other State, she will be bound thereby, even though she would not have been competent to make the contract according to the laws of her own State. In such a case the law of the place where the contract is made will be enforced wherever the suit is brought, even in the State of her domicile, subject only to the exception that if the suit is brought in a jurisdiction whose law imposes upon married women a total incapacity to bind themselves by any contract whatever, then perhaps for reasons of public policy the contract will not be enforced. It follows, therefore, beyond question, that if Mrs. Poole had merely stepped across the State line between Bristol, Tenn., and Bristol, Virginia, and signed the note in the latter State, she would be held liable thereon in a suit brought in any State where a married woman can contract, including now the State of Tennessee.

It will be found, too, from an examination of the authorities last above cited, to which many others of like tenor and effect might be added, that most of them concede that the actual bodily presence of the contracting party is not necessary to make the contract valid according to the laws of some other State than that of the domicile. If, for example, in the instant case Mrs. Poole had delivered the note to Perkins by mailing or sending it to him in Virginia, then by the clear weight of authority she would have bound herself in accordance with the laws of the State of Virginia as fully as if she had actually crossed the State line and signed and delivered the note in that jurisdiction. This is unmistakably implied even in the New York case of Union National Bank v. Chapman, supra, so strongly relied upon by the plaintiff in error.

We are brought, therefore, to this question: If Mrs. Poole had actually come into Virginia and signed the note, or had sent it here for delivery and acceptance, would there have been any substantial legal difference between the case as thus supposed and the case as it actually exists? We think not. It may be stated as settled law that when parties make contracts which upon their face are to be discharged in a State other than that in which they are executed, they are presumed, in the absence of anything to the contrary, to have intended the law of the State of performance, the lex loci solutionis, to control, and thus, if intention can do so, to have voluntarily constituted the law of that State the law of the contract, or, as often otherwise expressed, the proper law or the governing law. So unanimous are the authorities on this proposition that those advocating the actual situs of the parties as the test of contractual capacity concede that if the intent in such cases is effective then they are in error and the lex loci solutionis must be regarded as the governing law.

The adoption of the intention of the parties to the contract as the true criterion is consistent with the reason which Prof. Minor assigns for his opinion that the proper law is the law of the place where the contract is actually signed. He says:

It may be regarded as certain that if the party enters into a contract in the State of his domicile, though the contract is to be performed elsewhere, the proper law governing his capacity to enter into the contract is the lex domicilii no matter where the suit may be brought. But if the contract is entered into in a State other than the party’s domicile, he has not the same right to claim the protection of his domiciliary law. He has voluntarily entered into another State and has there made an agreement with persons who are relying upon the law under which he is acting. To that law he has submitted himself when he makes the contract there, and a just comity will ordinarily demand that the sovereignty of that State over all acts done there should be respected in other States.

(Conflict of Laws, p. 145.) If the parties, by the mere act of signing in a State other than their domicile can give validity to a contract which would not be valid in their own State, and if the reason for this is that they are presumed to contract with reference to the law of such other State, it would seem to follow that the actual situs of the parties is only important as a factor in determining the law with reference to which they intended to contract. In this view, all that is needed to divest a married woman of her domiciliary incapacity is an intention sufficiently evidenced or expressed to contract with reference to the laws of a State in which the contract is valid, and, as we have just seen, where the contract, like the one involved in the instant case, provides upon its face for performance in a State whose laws will uphold it, such provision is alone sufficient to evidence an intention to bring the contract within the influence of the laws of the latter State [citing cases]. These cases did not involve the question of contractual capacity, but granting that the intention of the parties determines the proper law, the decisions here cited are conclusive of the proposition that the note in litigation, by providing for payment in Virginia, sufficiently expressed such intention. Citations to the same effect might be multiplied indefinitely.…

We conclude, therefore, that the note sued on in this case must be construed as having been executed with reference to the laws of the State of Virginia; that it became to all legal intents and purposes, so far as its validity is concerned, as truly a Virginia note as if it had been signed and delivered here; that by the laws of this State, Mrs. Poole could have legally executed the same; and that, therefore, the lower court was right in holding her liable.

The judgment is accordingly affirmed.

Linn v. Employers Reinsurance Corp.

392 Pa. 58, 139 A.2d 638 (1958)

Opinion by COHEN, J.

Plaintiff insurance brokers brought this action in law to require the defendant insurance company to account and pay to them commissions on insurance premiums received since 1953 from a New Jersey company. At the close of plaintiff’s evidence, the trial judge entered a nonsuit which the court en banc refused to remove, and this appeal followed.

From the undisputed evidence it appears that in 1926 the plaintiffs were engaged in the insurance brokerage business in Philadelphia. In that year plaintiffs offered to place risks undertaken by the Selected Risks Insurance Company of New Jersey for a consideration of five per cent of all premiums collected by the defendant on such policies. Plaintiff Linn went to New York City to negotiate an agreement with one William Ehmann, an agent of the defendant. Ehmann stated that he would first have to obtain authority to accept the offer from the defendant’s home office in Kansas City. He promised that he would communicate with the plaintiff “as soon as he could get word from Kansas City.” Linn then returned to Philadelphia, and subsequently received a telephone call from Ehmann accepting the offer.

The defendant entered into the required treaty with the New Jersey company which, as modified and renewed, continues in effect. From 1926 until 1953 the defendant paid the plaintiffs the agreed upon commissions. But in 1953, the defendant notified the plaintiffs that it did not consider itself obligated further under the contract and that it would discontinue accounting to the plaintiffs for the premiums received from the New Jersey company.

On this evidence the trial judge found that the contract was made in New York, and applying the New York Statute of Frauds, held that the agreement was unenforceable thereunder because it was not to be performed within one year from the date it was entered into. Wherefore, the court concluded that the defendant was under no duty to account.

We recognize that the formal validity of a contract is determined by the law of the state in which the contract was made. Since the provisions of the Statute of Frauds relate to formal validity, it is to the statute of the place of contracting that we must refer.3 It is therefore necessary for us to determine in which state the contract was made.

When a principal authorizes an agent to accept an offer made by a third party, as the defendant authorized Ehmann in the present case, the place of contracting is where the agent accepts the offer. In the case of acceptance by mail or telegraph, the act of acceptance is held to be effective where the acceptance was posted, or received by the telegraph company for transmission.

This court has not heretofore been required to determine the place where an acceptance spoken over the telephone is effective.

Professor Williston and the Restatement of Contracts take the position that a contract made over the telephone is no different from a contract made where the parties orally address one another in each other’s presence. In the latter case the offeror does not have the risk of hearing an acceptance addressed to him, and a contract is formed only if the acceptance is heard. Consequently, the place of contracting is where the acceptance is heard and not where the acceptance is spoken. While we agree that this analysis represents a sound theoretical view, the reported cases which consider this issue are uniform in holding that by analogy to the situations in which acceptance is mailed or telegraphed, an acceptance by telephone is effective, and a contract is created at the place where the acceptor speaks. Restatement, Conflict of Laws, supra, §326, comment c. In fact, where the federal courts are charged with the duty of applying Pennsylvania law they have reached this conclusion.

We believe that in this day of multistate commercial transactions it is particularly desirable that the determination of the place of contracting be the same regardless of the state in which suit is brought. The absence of uniformity makes the rights and liabilities of parties to a contract dependent upon the choice of the state in which suit is instituted and thus encourages “forum-shopping.” For this reason we choose to follow the established pattern of decisions and hold that acceptance by telephone of an offer takes place where the words are spoken.

Applying this principle to the facts before us, we conclude that the state where the contract was made is the state from which Ehmann telephoned the defendant’s acceptance to Linn. However, contrary to the trial court’s determination, there is no evidence in the record to indicate from which state Ehmann spoke. It is likely that he telephoned from his New York office, but it is also possible that he called from Kansas City or even Philadelphia; we cannot substitute speculation for evidence. The record of this case, therefore, must be remitted to the court below for determination of this question.

Judgment reversed and record remanded for further proceedings in accordance with this opinion. Costs to abide the event.

[Upon remand the case was tried, and on a second appeal, 153 A.2d 638 (1958), the court went over some of the same ground and added the following discussion of the determination of where the contract was made.] The court below submitted the issue of where the contract was made to the jury:

The question is simply this: Was this contract completed and made in New York? Was the acceptance made in New York? Whether that acceptance be by the spoken word over the telephone to Mr. Linn or whether it was by an act of Mr. Ehmann which was in the nature of an acceptance, could only be construed as an acceptance.

If the acceptance was not in New York but was at any other place, your verdict should be for the plaintiffs. If, however, it was in New York, your verdict must be for the defendant.

The jury returned a verdict for the plaintiffs upon which the court entered an order for the accounting.

… At least the jury, by its verdict, has determined that defendant’s contention as to the applicability of New York law has not been sustained by the evidence. Testimony was presented to them adequate to support their finding that a telephone call of acceptance was made and that the said telephone call was not made in the State of New York. While it is true that plaintiffs have the ultimate burden of proof in convincing the jury that a valid contract was entered into, the burden of producing evidence to show that this contract was made in New York was alleged and necessarily assumed by defendant.* This burden was not met. Since it was not established that the laws of New York are applicable, the laws of the forum, Pennsylvania, are presumed to apply. Unlike the New York Statute of Frauds the various provisions in the Pennsylvania statute do not require that an agreement of this sort be in writing even if it is not to be performed within a year. It has been said that the Statute of Frauds, where applicable, is not a mere rule of evidence, but rather, is a limitation of judicial authority to afford a remedy. Our statutes do not so limit the authority of this court to grant a remedy in this case.…

In the light of the disposition we make of this case it is unnecessary for us to consider plaintiff’s contention that even if the New York Statute of Frauds does apply its effect was waived by the admission of defendant’s counsel that an oral agreement had been entered into.

Judgment affirmed.


Questions and Comments

(1) The Poole court’s position seems to boil down to allowing the parties’ intent to control resolution of the choice-of-law question. Why should intent control? What was the purpose of the common-law rule relied on by F. D. Poole as a defense against the obligation of her note? Compare Milliken v. Pratt, 125 Mass. 374, 382 (Mass. 1878) (stating that “continental jurists” maintain that “laws limiting the capacity of infants or of married women are intended for their protection, and cannot therefore be dispensed with by their agreement; that all civilized states recognize the incapacity of infants and married women.”). Is it likely that a law that voided a married woman’s efforts to obligate herself on a promissory note was meant to be applicable, or not, depending on her intent? Wasn’t the law intended to frustrate her intent? Note, however, that not all (or even most) state contract laws are “mandatory” in the sense of placing limits on party intent. To the contrary, many contract issues are governed by state laws viewed as “defaults” that apply unless the parties vary them in the contract. Is the distinction between default and mandatory rules of contract law relevant to intent-based theories of choice of law for contract? How? What are the advantages and disadvantages of allowing party intent to control contractual choice-of-law issues?

Assuming that intent is the appropriate criterion, how should courts determine which state’s law the parties intended to choose? If the contract contains a choice-of-law clause that recites that the contract is to be governed by the law of State X, the matter is not too difficult. But what if the contract contains no choice-of-law clause? Is it likely that the parties in Poole specifically intended Virginia law to operate by virtue of their choice of a Virginia bank as the place of payment? If the intent of the parties is to govern with respect to capacity, why not pick the state whose law upholds the contract? That is, in fact, the rule chosen by some jurisdictions, sometimes referred to as the lex validitatis. See, e.g., Pritchard v. Norton, 106 U.S. 124 (1882).

(2) Poole’s intent-based approach for questions of contractual capacity is at odds with the First Restatement, which nowhere mentions the intent theory, but instead asserts that the “law of the place of contracting determines the capacity to enter into a contract.” See Restatement §333 (reproduced supra pages 3536). Poole thus makes clear that there were many different, and sometimes incompatible, strands to the traditional approach to choice of law for contracts. Beale, the author of the First Restatement, believed that party intent was impossible to discern with certainty. More fundamentally, he thought that party intent (including party intent as embodied in a choice-of-law clause) could not control because it would amount to “the power to do a legislative act”—a power that Beale believed private persons necessarily lacked. See 2 Beale, A Treatise on the Conflict of Laws §332.2 (1935). Do you agree with Beale? Is an intent-based rule inconsistent with a vested rights approach? Do you see why one committed to the “law of the place of the wrong” for torts might insist that the “law of the place of contract” governs contractual capacity issues? For an argument that the Restatement’s approach to contracts is inconsistent with then-prevailing case law and theoretically unattractive, see Nussbaum, Conflict Theories of Contracts: Cases Versus Restatement, 51 Yale L.J. 893 (1942).

(3) Does Poole’s focus on intent suggest an important difference between choice of law for contract and for tort? How, if at all, should these differences translate into differences in the content of choice-of-law rules?

(4) A promissory note is said by the court to be “performed” at the place of payment. Although the opinion does not say so, presumably the Poole note was signed in return for the loan of money. Wasn’t that lending by the lender the lender’s performance? Why doesn’t the court ask where the lender’s performance took place? If Perkins lent the Pooles the money in Tennessee, should Tennessee law govern Perkins’s obligations while Virginia law governs the Pooles’ obligations?

(5) The Poole court cites another case at one point for the proposition that “every contract as to its validity … is governed by the law of the place where it is made, unless it is to be performed in another place, and then it is governed by the law of the place where it is to be performed.” Wouldn’t it be a trifle simpler to say, “[E]very contract as to its validity … is governed by the law of the place where it is to be performed”? Isn’t that observation so obvious that it makes you a little suspicious of the court’s confidence in a rule it won’t state simply?

(6) If some ambiguity exists as to where performance occurred, or whose performance is critical, or whether the law of the place of contracting or performance is the applicable law, is the resulting uncertainty necessarily bad? Consider the fact that the court adjudicating F. D. Poole’s obligation was a Virginia court and Virginia had no coverture rule; F. D. Poole was trying to get out of an obligation that she had once (presumably) voluntarily undertaken; and the law of Tennessee had changed in the meanwhile. In Milliken v. Pratt, supra, the court hinted broadly that its decision was influenced by the fact that the law of Massachusetts, relied on there by a married woman to void her guaranty of her husband’s debt, had been altered in the meanwhile by the legislature. Is a certain amount of flexibility in conflicts desirable in order to allow the court to reach the “right” result? If so, why not abandon the rules that need the oil of flexibility and use as rules (or method) the considerations that lead us to conclude that a particular result is “right”?

(7) In the Poole case the court said that it was clear that if Poole had signed the note in Virginia she would have been bound by Virginia law. It concluded that if she was going to be allowed to achieve that result by changing location, there was little reason to deny such an effect by having the parties determine the place of performance. If the court is speaking in practical terms, is its conclusion correct? How many parties far from the state line would actually make a trip elsewhere to settle a choice-of-law issue in signing their contracts?

(8) What was the purpose of the New York statute of frauds relied on by the defendant in the Linn case? Would its purpose vary with where the telephone call in question was made?

(9) Isn’t it silly to make the entire result of an important business transaction like that in the Linn case turn on where the defendant’s agent called from? Moreover, there are other possible problems arising from the Linn court’s approach. Suppose that we had two scenarios of that telephone call, and suppose that the defendant’s agent had in fact called from New York.

Scenario I

Linn: Bill, you ol’ sun of a gun, is that you?

Ehmann: None other, Walt.

Linn: What have you heard from K.C.?

Ehmann: It’s in the bag—they said OK to your offer.

Linn: Hey, baby, that’s great.

Scenario II

Linn: Good morning Mr. Ehmann. How are you?

Ehmann: What’s the matter, Walt? You aren’t losing interest in the deal, are you?

Linn: Well …

Ehmann: Hey, come on, Walt. K.C. thinks it’s a good idea. I could even offer you a free desk calendar every year.

Linn: How could I turn down a deal like that? Sold!

Ehmann: Hey, baby, that’s great.

(Adapted from Cramton, Currie & Kay, Conflict of Laws 25 (3d ed. 1981).) Where was the contract in Scenario I formed? In Scenario II? How well will the participants remember which of these two possible 1926 conversations took place when they go to court in 1953? Does it make sense to ignore how the parties dealt with each other for 27 years and determine their dispute by the form of a 1926 telephone conversation? Or is it unfair to judge a rule that works well in many cases on the basis of a possibly unusual fact situation?

(10) Note that it is the place of contract formation, and not the place of performance, that the court says determines the statute of frauds issue. Why should that be?

(11) Recall that the “last act” doctrine for torts is that the governing law is that of the state where the last act necessary for a cause of action occurs, while the last-act approach for contracts zeroes in on the law of the state where the last act necessary for the formation of the contract occurs. Why not use the law of the place of breach in contracts cases, since that is the act necessary to give rise to a cause of action? It isn’t necessary to do much violence to the language of the Carroll case to adopt a place-of-breach position for contracts that is “eminently sound in principle and upon logic”:

It is admitted, or at least cannot be denied, that [a contract without a breach] will not authorize or support a recovery. Up to the time [the breach occurred] no injury had resulted. For all that occurred in Alabama, therefore, no cause of action whatever arose. The fact which created the right to sue, the [breach] without which confessedly no action would lie anywhere, transpired in the State of Mississippi. It was in that State, therefore, necessarily that the cause of action, if any, arose; and whether a cause of action arose and existed at all or not must in all reason be determined by the law which obtained at the time and place when and where the fact which is relied on to justify a recovery transpired.


An Exercise

On February 16, 1975, the New York Times carried an illustrated story on a case of food poisoning occurring on an international jet airliner. The following is the outline of events in the story:

(1) On February 1, a cook in Alaska handled ham to be served aboard the flight. The cook had blisters infected with staphylococcus. The ham was kept at room temperature for six hours during preparation.

(2) In Tokyo, 343 passengers boarded the flight. While the plane was flying toward Anchorage for refueling, the food trays were stored at 50° overnight. Staphylococcus multiplies at temperatures above 40° and produces a toxin that commonly causes food poisoning.

(3) The trays were loaded at Anchorage, and the plane took off for Copenhagen, its next stop.

(4) The trays were heated in a 300° oven for 15 minutes, a treatment that will not destroy the toxin, and the passengers were served. Those who ate the contaminated food began to experience the symptoms of food poisoning as the plane approached Copenhagen.

(5) In Copenhagen, 144 passengers disembarked ill. The rest flew on to Paris. Another 51 of these later became ill.

If Smith (a) arranged a tour of Japan by telephone from Michigan through American Express in New York and left from Detroit Metropolitan Airport for Japan, (b) arranged while she was in Tokyo, through the American Express office there, to take a different flight and include Europe in her travels, (c) boarded in Tokyo, (d) ate the contaminated food, which was loaded in Anchorage, while flying over Canada, (e) landed in Copenhagen, where she began to feel ill but refused medical attention, and (f) continued on to Paris, where she became violently ill and died:

(1) Whose law would determine whether an action for wrongful death would be available?

(2) Whose law would determine whether negligence was a necessary part of the cause of action or whether strict liability would apply?

(3) Whose law would apply to determine whether Smith’s refusal of medical assistance in Copenhagen constituted contributory negligence? Whose law would determine whether contributory negligence was a valid defense?

(4) If an action is brought by Smith’s estate for violation of an implied provision of her contract of passage that she would be transported safely, whose law would apply to determine whether the airline’s behavior constituted proper performance of its contract?

(5) Whose law would determine, in a contract action, whether Smith’s refusal of medical assistance constituted a failure to mitigate damages, limiting her estate’s recovery?

(6) Whose law should determine whether the proper action is one in tort or in contract? If both are permitted, what should be done if the applicable tort law disallows recovery, while the applicable contract law (of a different jurisdiction) allows recovery?

C.   Domicile

Selections from the First Restatement of Conflicts, on Domicile

§§9-16, 18-21, 23, 25, 27, 41 (1934)

§9. Domicil

Domicil is the place with which a person has a settled connection for certain legal purposes, either because his home is there, or because that place is assigned to him by the law.

§10. Domicil by What Law Determined

(1) A question of domicil as between the state of the forum and another state is determined by the law of the forum.

(2) A question of domicil as between one or another of several states other than the forum, the law of each which differs from that of the other and from that of the forum, is determined by the law of the forum.

§11. One and Only One Domicil

Every person has at all times one domicil, and no person has more than one domicil at a time.

§12. Relation Between Domicil and Home

Except as stated in §§17 and 26 to 40, relating to domicil in a vehicle and to domicil by operation of law, when a person has one home and only one home, his domicil is the place where his home is.

§13. Home Defined

A home is a dwelling place of a person, distinguished from other dwelling places of that person by the intimacy of the relation between the person and the place.

§14. Domicil of Origin

            (1) The domicil of origin is the domicil assigned to every child at its birth.

            (2) Subject to the rule stated in §32 pertaining to divorce or separation of the parents, if the child is the legitimate child of its father, the domicil of the father at the time of its birth is assigned to it; if the child is not the legitimate child of its father, or is posthumous, the domicil assigned is that of its mother at the time of birth.

            (3) Upon failure of proof of the domicil of the parent at the time of the child’s birth, a court may accept as the domicil of origin the place to which a person can earliest be traced.

§15. Domicil of Choice

            (1) A domicil of choice is a domicil acquired, through the exercise of his own will, by a person who is legally capable of changing his domicil.

            (2) To acquire a domicil of choice, a person must establish a dwelling-place with the intention of making it his home.

            (3) The fact of physical presence at a dwelling-place and the intention to make it a home must concur; if they do so, even for a moment, the change of domicil takes place.

            (4) A person can acquire a domicil of choice only in one of three ways:

(a) having no home, he acquires a home in a place other than his former domicil;

(b) having a home in one place, he gives it up as such and acquires a new home in another place;

(c) having two homes, he comes to regard the one of them not previously his domicil as his principal home.

§16. Requisite of Physical Presence

To acquire a domicil of choice in a place, a person must be physically present there; but a home in a particular building is not necessary for the acquisition of a domicil.

§18. Requisite of Intention

A person cannot change his domicil by removal to a new dwelling-place without an intention to make the new dwelling place his home.

§19. Nature of Intention Required

The intention required for the acquisition of a domicil of choice is an intention to make a home in fact, and not an intention to acquire a domicil.

§20. Present Intention

For the acquisition of a domicil of choice the intention to make a home must be an intention to make a home at the moment, not to make a home in the future.

§21. Presence Under Compulsion

A person cannot acquire a domicil of choice by any act done under legal or physical compulsion.

§23. Continuing Quality of Domicil

A domicil once established continues until it is superseded by a new domicil.

§25. Domicil in Dwelling-House Cut by Boundary Line

Where a person has his home in a dwelling-house which is situated upon a dividing line between political divisions of territory, his domicil is within that territorial division in which the preponderant part of his dwelling-house is situated; if there is no preponderance, the domicil is in the territorial division in which the principal entrance to the house is situated.

§27. Domicil of Married Woman

Except as stated in §28, a wife has the same domicil as that of her husband.

§41. Domicil of Corporation

A corporation is domiciled in the state where it was incorporated, and cannot acquire a domicil outside that state.

White v. Tennant

31 W. Va. 790, 8 S.E. 596 (1888)


This is a suit brought December, 1886, in the Circuit Court of Monongalia county by William L. White and others against Emrod Tennant, administrator of Michael White deceased and Lucinda White, the widow of said Michael White, to set aside the settlement and distribution made by the administrator of the personal estate of said decedent, and to have the same settled and distributed according to the laws of the State of Pennsylvania, which State it is claimed was the domicile of said decedent, who died in this State intestate. On October 28, 1887, the court entered a decree dismissing the plaintiff’s bill, and they have appealed.

The sole question presented for our determination is, whether the said Michael White at the time of his death, in May, 1885, had his legal domicile in this State or in the State of Pennsylvania. It is admitted to be the settled law, that the law of the State, in which the decedent had his domicile at the time of his death, will control the succession and distribution of his personal estate. Before referring to the facts proved in this cause, we shall endeavor to determine what in law is meant by “domicile.”

Dr. Wharton says: “‘Domicile’ is a residence acquired as a final abode. To constitute it there must be (1) residence, actual or inchoate; (2) the nonexistence of any intention to make a domicile elsewhere.” Whart. Confl. Law §21.… Two things must concur to establish domicile—the fact of residence, and the intention of remaining. These two must exist, or must have existed, in combination. There must have been an actual residence. The character of the residence is of no importance; and, if domicile has once existed, mere temporary absence will not destroy it, however long continued. The original domicile continues until it is fairly changed for another. It is a legal maxim that every person must have a domicile somewhere; and he can have but one at a time for the same purpose. From this it follows that one can not be lost or extinguished until another is acquired. When one domicile is definitely abandoned and a new one selected and entered upon, length of time is not important; one day will be sufficient, provided the animus exists. Even when the point of destination is not reached, domicile may shift in itinere, if the abandonment of the old domicile and the setting out for the new are plainly shown.… A change of domicile does not depend so much upon the intention to remain in the new place for a definite or indefinite period as upon its being without an intention to return.… A domicile once acquired remains until a new one is acquired elsewhere, facto et animo. Story Confl. Law, §47.

The material facts in the case at bar are as follows: [In 1885, Michael White, a life-long West Virginia domiciliary, sold his farm in West Virginia. Michael had made arrangements with his family to move to a house on a forty-acre tract in Pennsylvania that was part of a larger family estate the main part of which, including the family mansion, was in West Virginia. On April 2, 1885, Michael, along with his wife Lucinda and their personal possessions, left the West Virginia home “with the declared intent and purpose of making the Pennsylvania house his home that evening.” They arrived at the Pennsylvania house by sundown and unloaded their goods and stock. But because the house was cold and damp, and because Lucinda was feeling unwell, the couple returned to the mansion in West Virginia to spend the evening. When Lucinda White’s illness turned out to be typhoid fever, Michael stayed at the West Virginia mansion to care for her, returning daily to the Pennsylvania home to look after it and care for the stock. Within two weeks Michael himself contracted typhoid fever and died intestate in the West Virginia mansion. Lucinda recovered, and the defendant, Emrod Tennant, Lucinda’s father, administered Michael’s estate in West Virginia and distributed the estate in accordance with West Virginia law, under which a widow received the decedent’s entire personal estate. If the estate had been distributed under Pennsylvania law, the wife would receive only one-half of the estate, and Michael’s brothers and sisters—the plaintiffs—would have received the other half.]

As the law of the State, in which the decedent had his domicile at the time of his death, must govern the distribution of his estate, the important question is, where, according to the foregoing facts, was the domicile of Michael at the time of his death? It is unquestionable, that prior to the 2d day of April, 1885, his domicile was and had been in the State of West Virginia. Did he on that day or at any subsequent day change his domicile to the State of Pennsylvania?

The facts in this case conclusively prove, that Michael White, the decedent, abandoned his residence in West Virginia with the intention and purpose not only of not returning to it, but for the expressed purpose of making a fixed place in the State of Pennsylvania his home for an indefinite time.

This fact is shown by all the circumstances as well as by his declarations and acts. He had sold his residence in West Virginia and surrendered its possession to the purchaser, and thereby made it impossible for him to return to it and make it his home. He rented a dwelling in Pennsylvania, for which he had no use except to live in and make it his home. In addition to all this, he had moved a part of his household goods into this house, and then, on the 2d of April, 1885, he with his family and the remainder of his goods and stock finally left his former home and the State of West Virginia, and moved into the State of Pennsylvania to his house in that State, and there put his goods in the house, and turned his stock loose on the premises. At the time he left his former home on that morning, and while he was on the way to his new home, his declared purpose and intention were to make that his home from that very day, and to occupy it that night. He arrived in Pennsylvania and at his new home with that intention; and it was only after he arrived there and for reasons not before known, which had no effect to change his purpose of making that his future home, that he failed to remain there from that time. There was no change in his purpose, except that after he arrived at his new home and unloaded and left his property there, he concluded on account of the condition of the house and the illness of his wife, that it would be better to go with his wife to remain one night with his relatives and return the next morning.

When he left his former home without any intention of returning and in pursuance of that intention did in fact move with his family and effects to his new home with the intention of making it his residence for an indefinite time, it is my opinion, that, when he and his wife arrived at his new home, it became eo instanti his domicile, and that his leaving there under the circumstances with the intention of returning the next day did not change the fact. The concurrence of his intention to make the Pennsylvania house his permanent residence with the fact, that he had actually abandoned his former residence and moved to and put his goods in the new one, made the latter his domicile. According to the authorities hereinbefore referred to he must of necessity have had a domicile somewhere. If he did not have one in Pennsylvania, where did he have one? The fact, that he left the Pennsylvania house, after he had moved to it with his family and goods, to spend the night, did not revive his domicile at his former residence on Day’s run, because he had sold that, and left it without any purpose of returning there. By going from his new home to the house of his relatives to spend the night he certainly did not make the house thus visited his domicile; therefore, unless the Pennsylvania house was on the evening of April 2, 1885, his domicile, he was in the anomalous position of being without a domicile anywhere, which, as we have seen, is a legal impossibility; and, that house having become his domicile, there is nothing in this case to show, that he ever did in fact change or intend to change it or to establish a domicile elsewhere.

It follows, therefore, that that house remained his domicile up to and at the time of his death; and, that house being in the State of Pennsylvania, the laws of that State must control the distribution of his personal estate notwithstanding the fact, that he died in State of West Virginia. For these reasons the decree of the Circuit Court must be reversed, and the cause must be remanded to that court to be there further proceeded in according to the principles announced in this opinion and the rules of courts of equity.

Rodriguez Diaz v. Sierra Martinez

853 F.2d 1027 (1st Cir. 1988)


Plaintiff Wilfredo Rodriguez Diaz (Rodriguez Diaz) appeals from an order of the United States District Court for the District of Puerto Rico dismissing his complaint for negligence and medical malpractice for lack of diversity jurisdiction. Rodriguez Diaz brought this action in the district court following a motor vehicle accident in Puerto Rico when he was 17 years of age. All the defendants reside in Puerto Rico. However, between the time of the accident and the commencement of this action, Rodriguez Diaz moved from his family’s home in Puerto Rico to New York, and attained his 18th birthday. He then sued in the United States District Court for the District of Puerto Rico, on his own behalf and through his parents as next friends, alleging that he is a citizen of New York and that there is diversity of citizenship under 28 U.S.C. §1332 (1982).


The facts relevant to the jurisdictional issue are these: On November 21, 1984, Rodriguez Diaz, while operating a motorcycle in Caguas, Puerto Rico, was in a collision with an automobile driven by Marcelo Sierra Martinez. Rodriguez Diaz suffered bodily injuries. He was immediately taken to the Hospital Regional de Caguas, from where he was transferred to the Centro Medico for emergency treatment. Rodriguez Diaz alleges in the present complaint that the treatment he received at the Centro Medico caused him to suffer a massive bone infection and aggravation of a leg injury. From Centro Medico he was transferred to Hospital General San Carlos where he alleges he also received improper treatment. Sometime later, Rodriguez Diaz was transferred to a hospital in New York City. He alleges he was living in New York at the time he brought this action in the United States District Court for the District of Puerto Rico. He further alleges in his complaint that he intends to remain in New York and make it his permanent home, and that he is now domiciled there. Rodriquez Diaz had turned 18 by the time he brought this action.1 His parents were and still are residents and domiciliaries of Puerto Rico, where the age of majority is 21. P.R. Laws Ann. tit. 31, §971 (1967).

The defendants in the action brought by Rodriguez Diaz were the driver of the automobile, Sierra Martinez, and two Puerto Rico hospitals, all of whom are residents and domiciliaries of Puerto Rico. The defendants moved in the United States District Court for the District of Puerto Rico where the action was brought to dismiss the complaint for lack of diversity jurisdiction. The district court concluded that, under Puerto Rico law, Rodriguez Diaz is a minor, and therefore, his domicile is that of his parents. Ruling that as a matter of law Rodriguez Diaz’s domicile at the time of the filing of this action was Puerto Rico, the court dismissed the complaint for lack of diversity. This appeal followed.

In its decision, the district court observed that, for purposes of diversity jurisdiction under 28 U.S.C. §1332(a)(1), state citizenship and domicile are equivalents. The court also noted that in a diversity case the capacity of a person to sue or be sued is determined by the law of the state of the litigant’s domicile. Fed R. Civ. P. 17(b). The court then made certain observations crucial to its analysis. These were that the citizenship of a minor was the citizenship of his parents, and that the latter’s domicile determined whether the minor had become emancipated so that he could establish a domicile of choice elsewhere. On the basis of the foregoing, the district court concluded that the law of Puerto Rico—the home of Rodriguez Diaz’s parents—controlled the issue of Rodriguez Diaz’s present domicile. As under Puerto Rico law plaintiff was still a minor, being under 21 at the time of suit, and as he was unemancipated under Puerto Rico law, he could not establish a domicile of choice outside Puerto Rico. It followed that he was still a domiciliary of Puerto Rico, and that, therefore, there was no diversity of citizenship.


While the case is close, we disagree with the district court’s conclusion that the domicile of Rodriguez Diaz’s parents—Puerto Rico—is the jurisdiction whose law must necessarily determine his capacity to acquire a domicile of choice.

We begin with certain generally accepted principles: As the lower court correctly noted, state citizenship2 for diversity purposes is ordinarily equated with domicile. A person’s domicile “is the place where he has his true, fixed home and principal establishment, and to which, whenever he is absent, he has the intention of returning.” Domicile generally requires two elements: 1) physical presence in a state, and 2) the intent to make such a state a home. It is the domicile at the time the suit is filed which controls, and the fact that the plaintiff has changed his domicile with the purpose of bringing a diversity action in federal court is irrelevant. Thus, except for the possible effect of his being a minor under Puerto Rico law, plaintiff’s settling in New York with the requisite domiciliary intent would make him a citizen of New York and entitle him to pursue this action.

The district court ruled that since plaintiff was under 21, the age of majority in Puerto Rico, he was a minor as a matter of law, and as such he could have only one domicile, that of his parents, which in this case is Puerto Rico. It so ruled even though the age of majority in New York is 18, so that, in the eyes of New York, plaintiff could acquire a personal domicile of his own there. We shall assume for purposes of resolving the legal issue raised in this appeal that New York is plaintiff’s “true, fixed home.”3 … The question before us is whether this is enough for plaintiff to have acquired a New York domicile for diversity jurisdiction purposes.

The parties and the district court have framed the issue as one of choice of law: which law is applicable, Puerto Rico law or New York law. It is a general principle of common law, recognized also in Puerto Rico, that the domicile of an unemancipated minor is ordinarily that of his parents. The age of majority in Puerto Rico is 21, while in New York it is 18. Plaintiff was 18 when he filed this action in the United States District Court for the District of Puerto Rico. Depending on which law is applied, the argument goes, Rodriguez Diaz will be treated as an adult or as a minor, with the capacity or lack of capacity to establish his own independent domicile. Plaintiff argues that we have to apply New York law, because that was his “domicile” at the time the action was filed. Not surprisingly, defendants argued, and the district court agreed, that whether Rodriguez Diaz was an adult with capacity to establish his domicile of choice is governed by Puerto Rico law.

As we see it, resolution of the issue before us does not and should not turn solely upon a conflicts of laws analysis. Although federal courts have to apply the choice of law rules of the forum to determine the substantive law in diversity cases, the “determination of litigant’s state citizenship for purposes of section 1332(a)(1) is controlled by federal common law, not by the law of any state.” The issue of what substantive law applies in a diversity case “is surely a different problem from that of whether a litigant should have access to federal court, and it does not conduce to clarity of analysis to suppose that the same answers will suffice for different questions.” … That does not mean that state law and state conflicts rules regarding domicile should be ignored. At very least, they are “useful in providing basic working definitions.” Stifel v. Hopkins, 477 F.2d 1116, 1120 (6th Cir. 1973). However, as the Sixth Circuit pointed out in Stifel, the considerations undergirding state choice-of-law rules have often been “developed in such diverse contexts as probate jurisdiction, taxation of incomes or intangibles, or divorce laws.” Id. Choice-of-law formulae, therefore, cannot be the sole guideposts when determining, for federal diversity purposes, whether a party is domiciled in one or another state. Id. at 1126. The ultimate decision must be such as will best serve the aims of the federal diversity statute and the perspectives of a nationwide judicial system.


In the case at bar, the district court noted that in a suit brought by the next friend, the minor’s domicile was controlling for diversity purposes. The court went on to state,

Under the common law, the citizenship of a minor is the citizenship of his parents, and to determine whether the minor has become emancipated so that he may establish a domicile of choice, we look to the law of the state of the citizenship of his parents.

After noting the dilemma caused by the fact Rodriguez Diaz had achieved majority status in New York, his present home, at age 18, while remaining a minor under Puerto Rico law, the court rejected plaintiff’s argument that he had the capacity to acquire a domicile of choice in New York. The court stated, “We have already concluded that the law of Puerto Rico controls the issue of Wilfredo’s [Rodriguez Diaz’s] domicile.”

The district court went on to show that, by Puerto Rico’s standards, plaintiff was unemancipated, given Puerto Rico’s strict civil law requirement that emancipation occur by formal notarized document.

The difficulty with this rationale, as we see it, lies in the court’s basic premise that the law of Puerto Rico controls. If Rodriguez Diaz were clearly a minor (under, say, both New York and Puerto Rico law), the court’s analysis would be hard to fault. The domicile of a minor is commonly regarded as that of his parents; as Rodriguez Diaz’s parents were domiciled in Puerto Rico, the law of Puerto Rico would ordinarily be controlling as to the means whereby, being a minor, he could be emancipated and so become free to acquire a domicile of choice.4

The problem here, however, is that the question is not whether, as a minor, plaintiff was emancipated, but whether he is a minor. That, in turn, depends upon a determination of where he is domiciled, the ultimate question. We do not, therefore, find the district court’s analysis persuasive.

This is not to say that Puerto Rico may not properly believe that the interest it has in its own citizens includes a legitimate concern as to the age at which a minor child reaches majority. Whether and when a person has legal capacity to, among other things, sue in Puerto Rico’s own courts, make contracts, dispose of property, and sustain himself without parental support or reciprocal duty owed to his parents, are all matters properly within the state’s province. However, local interests of this character are not in issue here. Rodriguez Diaz’s right of access to a federal court is “one uniquely of federal cognizance.” Ziady v. Curley, 396 F.2d [873 (4th Cir. 1968)] at 874; and since Rodriguez Diaz is now physically present in New York, which regards him, at 18, as having the capacity to be its domiciliary, we must weigh a ruling that would extend Puerto Rico’s less favorable policy towards 18 year olds against one that would accord to plaintiff the mature status he enjoys under the law of the state in which he now resides.

In any event, the court below erred in assuming at the very outset of its inquiry that Rodriguez Diaz was a minor and, on that basis, invoking the law of his parents’ domicile in preference to that of his present physical residence, which does not view him as a minor.

A similar logical difficulty occurs when we turn to the alternative approaches urged by appellees. For example, appellees point to Section 9 of the Puerto Rico Civil Code providing that,

The laws relating to family rights and obligations or to the status, condition and legal capacity of persons, shall be binding upon the citizens of Puerto Rico, although they reside in a foreign country.

P.R. Laws Ann. tit. 31, §9 (1967) (emphasis supplied). Appellees argue that this article provides that the issue of plaintiff’s legal capacity is governed by Puerto Rico law. The problem is, however, that the term “citizens of Puerto Rico” has been defined by the Supreme Court of Puerto Rico as equivalent to domicile. Therefore, whether Section 247 of the Civil Code, P.R. Laws Ann. tit. 31, §971—which provides that the majority age in Puerto Rico is 21—applies to Rodriguez Diaz will depend on where he is domiciled. Since this is the ultimate issue in contention, the approach does nothing to assist our resolution of the dispute.

The fact is, there is no purely logical way out of the dilemma. We cannot decide whether plaintiff is a minor under Puerto Rico law or an adult pursuant to New York law, without first determining where he is domiciled. On the other hand, we cannot make a determination whether he has the capacity to establish his own domicile without first knowing if he has reached the age of majority. We have, therefore, come full circle. To know if he has the legal capacity to establish his domicile of choice we need to know if he is an adult. But to determine whether he is an adult or a minor we first have to know where he is domiciled.

There is, to be sure, a possible way out of this circle under formal conflict of laws principles. We could apply forum law to determine Rodriguez Diaz’s legal capacity. Restatement of the Law, Conflicts of Law (Second), §§13 and 15(a). (1971).5 This might be a proper resolution had the question of plaintiff’s domicile arisen in a Commonwealth of Puerto Rico court, where the question of domicile is likely to implicate local matters over which Puerto Rico has the final say. But we do not think the lex forum provides a satisfactory resolution where the overriding and ultimate question is plaintiff’s citizenship for purposes of federal diversity jurisdiction. 28 U.S.C. §1332(a). Federal district courts sit throughout the nation. While it is unlikely a tort action like this, based on an accident in Puerto Rico, with all defendants residing there, could be pursued elsewhere than in the District of Puerto Rico, plaintiff could be involved in other federal diversity cases in other federal district courts, including the district courts located in New York. Were we to apply the rule of lex forum, Rodriguez Diaz could be viewed at one and the same time, and within the same judicial system, as both a citizen of New York and a citizen of Puerto Rico. That this is even theoretically possible suggests the unsatisfactoriness of determining state citizenship here, for federal diversity purposes, onthe basis of lex forum. Rodriguez Diaz, we think, must be a “citizen” of one or the other state—not of both simultaneously.

We do not, moreover, see any compelling reasons of policy for adopting the law of the forum here. As pointed out already, while Puerto Rico doubtless has legitimate reasons for regulating persons such as plaintiff in respect to the making of contracts, property dispositions, support, and the like in Puerto Rico, it has little if any interest, based simply on the continuing presence of his parents in Puerto Rico, in denying to Rodriguez Diaz, while physically residing in New York, the right to sue under the diversity jurisdiction in a federal district court whether in Puerto Rico or elsewhere. While not crucial to our result, we also note that even plaintiff’s parents have joined him in bringing this action: thus the parents’ separate interests provide no reason to deny him the right to sue in a federal court.6 In brief, a mechanical recourse to the lex forum does not strike us as a thoughtful solution to the current dilemma.


Since neither pure logic nor conflict rules provide a meaningful solution, we feel free to make the choice we think fits best with the aims of the diversity statute and the national character of the federal judicial system. We hold that Rodriguez Diaz is a domiciliary of the State of New York—or, rather, that, if he can satisfy the district court that he meets the requisite factors of physical presence and intent, he is entitled to be a New York domiciliary for diversity purposes notwithstanding his minority status under Puerto Rico law. In reaching this result, we focus upon the physical and mental aspects of plaintiff’s own situation, rather than imposing upon him a disability foreign to the law of the state where he now resides and having little meaning in this situation even to the place—Puerto Rico—whose law calls for it. To hold that one who meets all the domiciliary requirements (including capacity) of the state where he currently resides is a citizen of that state, seems clearly the most reasonable result here.

Our approach is consistent with that of other federal courts.… While in the ordinary case, relevant rules of state law provide the basis for the applicable federal common law, federal courts will deviate if necessary in order to achieve the purposes of the diversity statute7 and, sometimes, simply to achieve a more equitable and coherent result.8 Not surprisingly, a number of cases have arisen from the tension, as here, between technical presumptions as to the domicile of a minor and the realities of the minor’s actual situation.

In the present case, there are perhaps no urgent reasons of federal diversity policy comparable to those found [in other cases]. Since Rodriguez Diaz is recently from Puerto Rico, and his parents reside there, it is unlikely he would encounter prejudice were he forced to sue in Puerto Rico’s own courts. The more realistic comparison, however, may be between the relative unfairness of denying a federal forum to Rodriguez Diaz while granting it to another young Puerto Rican of similar age whose parents moved to New York with him. Federal diversity jurisdiction exists as a matter of right for those who meet the statutory criteria, whether or not the plaintiff would actually encounter prejudice in the courts of another state. Federal courts should not, therefore, deny the right on the basis of pointless technicalities. In this case, if Rodriguez Diaz, being physically present in New York, qualifies under regular domiciliary rules as a domiciliary of New York, we do not think the difference in law between his former domicile, Puerto Rico, and New York concerning the age of majority should deny him right to sue as a citizen of New York in federal court.

Vacated and remanded for further proceedings not inconsistent herewith.

TORRUELLA, J. (dissenting).

With due respect I believe the majority has reached the wrong result, and that, by a circuitous route. Its conclusion is inevitable because its reasoning commences by “assum[ing] for purposes of resolving the legal issues raised in this appeal that New York is plaintiff’s ‘true, fixed home.’” I believe this is a fallacious assumption because it improperly shifts the focus of analysis.

Since the only undisputed fact in this case is that plaintiff was domiciled in Puerto Rico to begin with, it seems to me that the logical starting point is determining how plaintiff could change his domicile from Puerto Rico to New York. The answer to that question, in the context of this case, raises an issue of capacity, not one of intention. Since there is no case in which a change in domicile has taken place without, at the very least, a physical departure from the place of original domicile, and it is legally impossible to acquire a new domicile without first losing the old one, we must determine the legal significance of such action in that jurisdiction; i.e., Puerto Rico. The issue thus is what, if any, is the legal significance, for change of domicile purposes, of an 18 year old resident of Puerto Rico leaving that jurisdiction.

The answer under Puerto Rican law is clear: none. An 18 year old is considered a minor in Puerto Rico. The domicile of an unemancipated minor is that of his parents, or in appropriate cases, his guardian. A minor can be emancipated, thus allowing him to acquire a separate domicile from his parents or guardian, only by either parent (or both if they jointly exercise the patria potestas) appearing before a civil law notary in the presence of two witness, and, with the minor’s consent, signing an emancipation deed. Unless this formal proceeding is effectuated beforehand, a Puerto Rico-domiciled minor lacks legal capacity to change his domicile from that of his parents, or in the appropriate case, his guardian. His moving away from his legal domicile (i.e., that of his parents or guardian), be that to a different location down the street, or to another place in Puerto Rico, or to another jurisdiction, is legally irrelevant because he cannot gain a new domicile until one has licitly lost the old one.

That a state has a paramount interest in protecting, regulating and controlling its minor citizens is beyond cavil.

… This paramount interest of a state in regulating the conduct of its minors is not, of course, limited to Puerto Rico, and protective legislation may be found throughout the United States varying its content in a manner reflective of local interests and attitudes.

Because this is, as it should be, an area highly reflective of local attitudes, values and mores, it is particularly unsuited to federalized tinkering. Thus, the majority is mistaken in placing emphasis on the “right of access to a federal court” as the central issue raised by this appeal.…

The majority, however, finds all of this authority unpersuasive. Instead, it directs a district court sitting in Puerto Rico and adjudicating a case controlled by Puerto Rico law, concerning an incident occurring in Puerto Rico, and involving an individual who is unemancipated and still a minor under Puerto Rico law, to apply New York law to determine that the youth is no longer a minor (i.e., emancipated) and thus able to invoke diversity jurisdiction in Puerto Rico.…

Perhaps most troubling about the decision of the majority is that it is presented without reliance on any rule of law. Is the majority saying that henceforth in this circuit the age of eighteen is the age of emancipation for choosing one’s own domicile for purposes of diversity jurisdiction? If so, why is eighteen chosen instead of twenty-one or any other age? Or is the rule now that we will use the law of the jurisdiction to which the youth has moved, such that if a New York nineteen-year-old leaves his parents and moves to Puerto Rico his domicile will remain in New York? Or is it that we use the law of the jurisdiction which has the youngest age of emancipation? Perhaps the rule is simply that we use the law of the jurisdiction which will create diversity jurisdiction.

Whatever the new rule is, I simply cannot see why it has been adopted at the expense of valid local interests—interests completely ignored by the majority. For instance, Puerto Rico may have a very legitimate interest in allowing parents to control the lawsuits of its citizens under the age of twenty-one. It may want parents deciding whether and in what court a suit is prosecuted, the Commonwealth allows parents better to control the expense and scope of litigation. In some situations, parents may decide that local court is the better alternative. Furthermore, Puerto Rico may have an interest in not encouraging a young person to leave home to establish domicile elsewhere so as to bring a suit in federal court contrary to the wishes of those ultimately responsible under its law for that youth.…

I dissent.


Questions and Comments

(1) Holmes stated: “[W]hat the law means by domicile is the one technically pre-eminent headquarters, which as a result of either fact or fiction every person is compelled to have in order that by aid of it certain rights and duties which have been attached to it by the law may be determined.” Bergner & Engel Brewing Co. v. Dreyfus, 172 Mass. 154, 157 (1898).

(2) The domicile concept serves many purposes. As White shows, domicile provides the controlling law for questions of succession to personal property. Domicile was also the traditional choice-of-law criterion in contexts “related to personal status, such as marriage and divorce, legitimacy and adoption.” 1 Beale, The Conflict of Laws §9.3, p. 91 (1935). As we shall see in Chapter 3, domicile is even more important for modern approaches to choice of law. Domicile also has uses beyond pure choice-of-law questions. As Rodriguez Diaz shows, domicile is typically equated with a natural person’s citizenship for purposes of federal diversity jurisdiction. The domicile of at least one party provides the basis for divorce jurisdiction. Domicile also provides the basis for in personam jurisdiction and for determination of numerous taxation questions. There are many other functions of the domicile concept as well. Is it likely that all of these different purposes will be served by a unitary concept? Compare Toll v. Moreno, 284 Md. 425 (1979) (“in Maryland, as in the majority of jurisdictions, the meaning and basic principles for determining domicile do not vary depending on the context”).

(3) Is the use of domicile for choice-of-law purposes in tension with the First Restatement’s emphasis on the place where events occur? Is domicile simply a different form of territorialism, focusing on where someone is from rather than where certain events occur? See Dane, Conflict of Laws, in A Companion to the Philosophy of Law and Legal Theory 209 (Patterson ed., 1996) (distinguishing between “act-territorial” and “person-territorial” choice-of-law rules). Why do some traditional choice-of-law rules focus on act-territorialism while others focus on person-territorialism?

(4) What does White suggest about the relative priority of the “intent” and “presence” prongs of domicile? What would the court have done if Mr. White died in Pennsylvania before he ever entered the house? What if he died just before he crossed the border from West Virginia into Pennsylvania?

(5) The military poses a special problem precisely because it puts in question the intent of the putative domiciliary. Can an intent to make a place one’s home really be formed if one is present because of orders and subject to being moved at any time because of further orders? The same question arose in Stifel v. Hopkins, 477 F.2d 116 (6th Cir. 1973), cited by the Rodriguez Diaz court, in which a prisoner in a federal prison in Pennsylvania sought to sue his attorney and parents, all residents of Ohio, in federal court. Jurisdiction was based on diversity. The lower court dismissed on the grounds that the plaintiff could not by law acquire a Pennsylvania domicile while in prison. The court of appeals reversed, indicating that a per se rule is inappropriate. On remand, the lower court was ordered to

consider factors such as the possibility of parole for appellant, the manner in which appellant has ordered his personal and business transactions, and any other factors that are relevant to corroboration of appellant’s statements. These factors must be weighed along with the policies and purposes underlying federal diversity jurisdiction to determine whether appellant has overcome the presumption that he has maintained his former domicile.

477 F.2d at 1127. If you were the district judge, what kind of questions would you like to hear answered before making a new finding that won’t get reversed by the court of appeals? Compare Restatement (Second) of Conflict of Laws §17 (1986 Revision) (stating that a person “usually” does not acquire a domicile of choice by presence under physical or legal compulsion).

(6) An unusual domicile case is Blaine v. Murphy, 265 F. 324 (D. Mass. 1920), which was brought in federal court by virtue of federal diversity jurisdiction. The plaintiff was a citizen of New York and alleged that the defendants were citizens of Massachusetts. The defendants pleaded in abatement that they were also citizens of New York. Defendants ran a hotel called the State Line Hotel, through which ran the Massachusetts-New York line, as indicated by an old marker. A later survey sponsored by the two states, however, had shown that the marker was some 50 feet east of the true line. Thus, almost all of the hotel (where the defendants lived as well as worked) lay in Massachusetts. In particular, those portions of the building in which they ate and slept were in Massachusetts. The court did note that the outdoor toilets were in New York. Nonetheless, the court invoked the rule, “The place where a person habitually eats, sleeps, and makes his home is his domicile.” It was held not to be relevant that the parties had believed their domicile (as shown by numerous documents) to be New York for at least 40 years.

(7) According to an article in Nature discussing the appointment of Mr. Michael Sohlman as director of the Nobel Foundation, the Sohlman family connection with Alfred Nobel dated back to the start of the twentieth century, when as Nobel’s employee, Mr. Sohlman’s grandfather was assigned the responsibility of moving all of the late inventor’s personal assets from Paris to Sweden, where the estate was being administered. The reasoning behind locating administration of the estate in Sweden was that French law then in force deemed a person’s domicile to be the place where he kept his horses. Following Ancestral Footsteps, 360 Nature 514 (1992).

D.   Marriage

Selections from the First Restatement of Conflicts, on Marriage and Legitimacy

§§121-123, 128-130, 132-134, 136-141 (1934)

§121. Law Governing Validity of Marriage

Except as stated in §§131 and 132, a marriage is valid everywhere if the requirements of the marriage law of the state where the contract of marriage takes place are complied with.

§122. Requirements of State of Celebration

A marriage is invalid everywhere if any mandatory requirement of the marriage law of the state in which the marriage is celebrated is not complied with.

§123. “Common Law” Marriage

A marriage without any formal ceremony is valid everywhere if the acts alleged to have created it took place in a state in which such a marriage is valid.

§128. Marriage in a Nomadic Tribe

If one or both of the parties to a marriage is a member of a tribe governed by tribal law, and the marriage takes place where the tribe is at the time located, and in accordance with the tribal law, the marriage is valid everywhere.


c. Gipsy, North American Indian, African and Esquimaux tribes. Tribal law means the law of a tribe which by the law of the state in which it is located has its own law. The term would not be used, for instance, of the usages of a gipsy tribe not recognized by the state in which it is as having a right to a separate law. Tribal law is recognized as existing law in the case of Indian tribes in North America, of native African tribes, and of Esquimaux tribes.

§129. Evasion of Requirement of Domicil

If the requirements of the law of the state of celebration are complied with, the marriage is valid everywhere, except under the circumstances stated in §§131 and 132, although the parties of the marriage went to that state in order to evade the requirements of the law of their domicil.

§130. Remarriage After One Party to Divorce Forbidden to Remarry

If, by a decree of divorce validly granted in one state, one party is forbidden for a certain time or during his life to marry again, and he goes into another state and marries in accordance with the law of that state, the marriage, unless invalid for other reasons, is valid everywhere, even in the state in which the divorce was granted.

§132. Marriage Declared Void by Law of Domicil

A marriage which is against the law of the state of domicil of either party, though the requirements of the law of the state of celebration have been complied with, will be invalid everywhere in the following cases:

(a) polygamous marriage, (b) incestuous marriage between persons so closely related that their marriage is contrary to a strong public policy of the domicil, (c) marriage between persons of different races where such marriages are at the domicil regarded as odious, (d) marriage of a domiciliary which a statute at the domicil makes void even though celebrated in another state.

§133. Effect of Foreign Marriage

Except as stated in §134, a state will give the same effect to a marriage created by the law of another state that it gives to a marriage created by its own law.

§134. Marriage Contrary to Public Policy

If any effect of a marriage created by the law of one state is deemed by the courts of another state sufficiently offensive to the policy of the latter state, the latter state will refuse to give that effect to the marriage.

§136. Law Governing Nullity

The law governing the right to a decree of nullity is the law which determined the validity of the marriage with respect to the matter on account of which the marriage is alleged to be null.

§137. Law Governing Legitimacy

The status of legitimacy is created by the law of the domicil of the parent whose relationship to the child is in question.

§138. Legitimacy at Birth

The legitimate kinship of a child to either parent from the time of the child’s birth is determined by the law of the state of domicil of that parent at that time.

§139. Legitimacy from Birth

An act or event after the birth of a child who was born illegitimate may make it the legitimate child of either parent from birth if the law of the state of domicil of that parent at the time of the child’s birth and the law of the parent’s domicil at the time of the legitimating act so provide.

§140. Legitimation After Birth

An act done after the birth of an illegitimate child will legitimize the child as to a parent from the time of the act if the law of the state of domicil of that parent at that time so provides.

§141. Effect of Legitimacy Created by Foreign Law

The status of legitimacy, created by the law of a state having jurisdiction so to do, will be given the same effect in another state as is given by the latter state to the status when created by its own law.

Matter of Ranftle

81 A.D.3d 566, 917 N.Y.S.2d 195 (2011)

[The surviving spouse of a same-sex couple (married in Canada) was named the executor of the will. Decedent’s sibling sued, claiming that the marriage was invalid because New York, at the time, did not recognize same-sex marriages.]

Order, Surrogate’s Court, New York County (Kristen Booth Glen, S.), entered on or about July 27, 2010, which denied appellant’s petition to vacate the probate of his brother’s will, unanimously affirmed, without costs.

In his last will and testament, executed on August 12, 2008, the decedent made bequests to three brothers, including appellant, and a goddaughter. He left the residue of his estate to respondent, his same-sex partner, whom he had married in Canada on June 7, 2008. Decedent appointed respondent as the executor of his will, which included an in terrorem clause. On December 12, 2008, respondent, as the executor named in the will, filed a petition for probate in the Surrogate’s Court. Respondent identified himself as the decedent’s surviving spouse and the sole distributee. On December 12, 2008, respondent served the legatees with notice of probate, and on December 15, 2008, the Surrogate’s Court issued a decree granting probate.

On January 26, 2009, the Surrogate’s Court issued an opinion finding that respondent was “decedent’s surviving spouse and sole distributee” (EPTL 4-1.1) and thus, citation of the probate proceeding need not issue to anyone under SCPA 1403 (1) (a). The court found that the decedent’s same-sex marriage to respondent was valid under the laws of Canada, where it was performed, and did not fall into either of the two exceptions to the marriage recognition rule, as the marriage was not affirmatively prohibited or proscribed by natural law. Accordingly, the Surrogate’s Court found that the marriage was entitled to recognition.

By order to show cause, dated June 23, 2009, appellant petitioned the Surrogate’s Court for vacatur of the probate decree and permission to file objections, alleging that the court was without jurisdiction to grant probate without citation having been issued on the decedent’s surviving siblings. Appellant argued that the recognition of the decedent’s same-sex marriage violated public policy in New York and that he should have been cited in the probate proceeding and provided with an opportunity to file objections thereto as a distributee.

In denying the instant petition, the Surrogate found that appellant’s position that same-sex marriage violated public policy had been “specifically addressed and rejected by the Appellate Division in Martinez v. County of Monroe, 50 A.D.3d 189 (2008), lv. dismissed, 10 N.Y.3d 856 (2008)) and is patently without merit.” We agree.

New York’s long-settled marriage recognition rule affords comity to out-of-state marriages and “recognizes as valid a marriage considered valid in the place where celebrated” (Van Voorhis v. Brintnall, 86 N.Y. 18, 25 (1881); see also Matter of Mott v. Duncan Petroleum Trans., 51 N.Y.2d 289, 292 (1980)). This rule does not extend such recognition where the foreign marriage is “contrary to the prohibitions of natural law or the express prohibitions of a statute” (Moore v. Hegeman, 92 N.Y. 521, 524 (1883); see also Thorp v. Thorp, 90 N.Y. 602, 606 (1882)). Same-sex marriage does not fall within either of the two exceptions to the marriage recognition rule.

The failure of the Legislature to enact a bill “affords the most dubious foundation for drawing positive inferences” (see Clark v. Cuomo, 66 N.Y.2d 185, 191 (1985), quoting United States v. Price, 361 U.S. 304, 310-311 (1960)). Thus, the Legislature’s failure to authorize same-sex couples to enter into marriage in New York or require recognition of validly performed out-of-state same-sex marriages, cannot serve as an expression of public policy for the State. In the absence of an express statutory prohibition (Moore, 92 N.Y. at 524) legislative action or inaction does not qualify as an exception to the marriage recognition rule. Concur—Mazzarelli, J.P., Catterson, Manzanet-Daniels and Román, JJ.


Questions and Comments

(1) Hasn’t Ranftle missed the real point? Is the ultimate issue the validity of the marriage—or is it who gets some money? In fact, few cases will arise directly attacking the validity of a marriage: A rare criminal conviction (e.g., State v. Bell, 66 Tenn. 9 (1872)) will arise, and somewhat more often an action for annulment or for a declaratory judgment that no valid marriage ever existed.

In Ranftle, the putative spouse claimed the benefit of certain statutory provisions applying to spouses. Statutes giving special rights to surviving spouses may be indicative of the legislature’s assumptions about the intent of the deceased, but are more likely to express a moral view about the surviving spouse’s right to benefits. This is particularly clear in the case of statutes that give a surviving spouse a forced share of the decedent’s estate, even if there is a will to the contrary. But even if such statutes are supposed to operate independently of the testator’s intent, is it clear that the validity of the marriage per se is at issue? After two people have lived together for many years, might the legislature determine that the survivor is entitled to as much consideration whether the marriage was valid or not?

(2) Aren’t the answers even easier in the line of cases (see, e.g., Metropolitan Life Insurance Co. v. Holding, 293 F. Supp. 854 (E.D. Va. 1968)) in which the question is whether the person now claiming insurance proceeds was the “wife” or “husband” of the decedent as the term was used in the insurance contract? Is it likely that a decedent who thought that a marriage was valid and who bought insurance naming “my wife” or “my husband” as beneficiary would intend to benefit someone other than his or her cohabitant, whether or not the marriage was valid?

(3) Apart from questions about the “real” issue, are the considerations behind conflicts rules for marriage different from those for torts and contracts? Even an enemy of overemphasis on the desirability of uniformity would have to concede that uniformity is an attractive goal when the question is the validity of a marriage. Few people or states would wish to see marriages valid in some states while invalid in others, with cohabitants never sure of their status with respect to the criminal law, or the legitimacy of their children, etc.

In fact, the usual tendency is not merely to aim toward a uniform result but to aim for uniformity in favor of the marriage. For example, the Holding case, supra (where the court, applying Virginia conflicts law, searched for a state in which the parties’ common-law marriage was void), stated: “The public policy of Virginia is to uphold the validity of a marriage if at all possible.” But if that is true, why does Virginia deny validity to its own domestic common-law marriages?

(4) Is section 132 of the Restatement (supra pages 6465) an exception that swallows much of section 121’s “place of celebration” rule (see supra page 63)? Consider:

The First Restatement … does not merely contemplate that the domicile has a potential veto over a well-defined subset of issues. It recognizes in the domicile an absolute power, exercisable by statute or otherwise, to control for any reason the validity of its people’s marriages celebrated anywhere. Put another way, if a marriage of a domiciliary conducted outside the domicile is valid, it is only by the permission of the domicile. This reading, in turn, requires a new look at section 121.… At first, section 121 had looked like a typical First Restatement rule—a second-order, territorially based, allocation of prescriptive jurisdiction. In truth, however, section 121 does not recognize in the place of celebration any independent power to validate marriages. Rather, it reflects the first-order substantive decision of domicile states to recognize, by their own law, most marriages performed in accordance with the law of the place of celebration.

Dane, Whereof One Cannot Speak: Legal Diversity and the Limits of a Restatement of Conflict of Laws, 75 Ind. L.J. 511, 514 (2000). Do you agree with this interpretation? What explains the elevation of domicile over the place of celebration? Why would the state of domicile ever defer to marriages performed elsewhere? Why does the First Restatement appear to give the state of domicile more say over marriage than over tort and contract? Is uniformity more important in the marriage context? Why or why not?

(5) As in Ranftle, In re May’s Estate, 305 N.Y. 486, 114 N.E.2d 4 (1953) upheld a marriage that would have been invalid in New York because it was legally celebrated in another jurisdiction (Rhode Island). However, the marriage at issue in May’s Estate was between an uncle and a niece. Could a state uphold gay marriages but not incestuous marriages legally celebrated in another state? If so, would the reasons be strictly moral, or does the state have a legitimate fear of the biological effects of inbreeding? See generally Nagan, Conflict of Laws and Proximate Relations: A Policy-Science Perspective, 8 Rutgers-Cam. L.J. 416 (1977).

What difference should it make to the state of New York where related persons are married, when the dangers arise from the cohabitation itself or reproduction resulting from the marriage?

(6) When residents of State A step across the state line into State B and marry, does State B have any desire at all to see its law applied to the marriage? If so, why?

People v. Ezeonu

155 Misc. 2d 344, 588 N.Y.S.2d 116 (1992)

[Defendant, a Nigerian who was married under Nigerian and New York law, was prosecuted for statutory rape of a 13-year-old girl. Defendant claimed that, at the time of said rape, the complainant was his second wife offered to him by her parents. In 1992, Nigerian law allegedly recognized polygamy and New York law did not recognize rape between married persons.]


Defendant stands indicted for the crimes of rape in the first degree and rape in the second degree. The People contend the complainant was 13 years old at the time of the alleged crimes. Defendant, a Nigerian national, seeks to raise as a defense to the charge of rape in the second degree that at the time of the alleged crimes the complainant was his “second” or “junior” wife, given to him by her parents in Nigeria pursuant to the laws and tribal customs of that country. Defendant acknowledges that he already was legally married under both New York and Nigerian law at the time he entered into the purported second marriage, but asserts that the laws and tribal customs of Nigeria allow one man to have multiple wives. The following question in limine was stipulated between the People and defendant for the court’s determination: “If defendant, a Nigerian national, were legally married under both Nigerian and New York law, and if defendant then were to contract a second marriage legal in Nigeria while still married to his first wife and bring the said second wife to New York, what is the status of the second marriage and second wife in New York; specifically, as regards the second wife, is defendant considered ‘married’ pursuant to Penal Law §130.30?”

Penal Law §130.30 provides that:

“A person is guilty of rape in the second degree when, being eighteen years old or more, he or she engages in sexual intercourse with another person to whom the actor is not married less than fourteen years old.” (Emphasis added.)

If the court finds such Nigerian marriage legally recognized in this jurisdiction, defendant may assert its existence as a factual defense to the charge of rape in the second degree. As a matter of law, the court holds that under the stipulated facts the defendant is not “married” to the complainant and therefore cannot raise marriage as a defense at trial to the charge of rape in the second degree.

Findings of Fact

The parties by stipulation, supra, agree that the defendant was lawfully married to a then-living wife under the laws of New York and Nigeria at the time of his purported second “marriage” to the complainant in Nigeria.

Conclusions of Law

Under the stipulation submitted for determination in limine, even were defendant’s “marriage” to the complainant conducted in accordance with Nigerian law and custom, the marriage is null and void in New York. Therefore, as a matter of law, he is not married to her for purposes of the charge of rape in the second degree (Penal Law §130.30) and such purported marriage may not be raised at trial as a defense.

Generally, a marriage is recognized in New York if it is valid where consummated. Van Voorhis v. Brintnall, 86 N.Y. 18, 25 (1881). However, it is well established that this general rule does not apply where recognition of a marriage is repugnant to public policy. Clearly, recognition of a polygamous marriage is repugnant to public policy as evidenced by section 6 of the Domestic Relations Law which provides that:

“A marriage is absolutely void if contracted by a person whose husband or wife by a former marriage is living, unless either:

           “1. “Such former marriage has been annulled or has been dissolved for a cause other than the adultery…

           “2. [Repealed.]

           “3. Such former marriage has been dissolved pursuant [to Domestic Relations Law].”

It is significant to note that under said statute a bigamous marriage is not “voidable” but “absolutely void.” Moreover, bigamy is a crime in the State of New York. (Penal Law §255.15.)

Hence, “[i]t has been held that when this State is called upon to recognize either an incestuous or bigamous marriage, it will assert its strong public policy of condemnation thereof and refuse recognition even if that marriage was valid where consummated.” (Matter of Bronislawa K. v. Tadeusz K., 90 Misc. 2d 183, 185 (1977), citing Matter of May, 305 N.Y. 486 (1953).) Consequently, a polygamous marriage legally consummated in a foreign country will be held invalid in New York. (Earle v. Earle, 141 A.D. 611 (1910); Cruikshank v. Cruikshank, 193 Misc. 366 (1948); Matter of Incuria v Incuria, 155 Misc. 755, 759 (1935) [“If a citizen of a foreign State, in which State polygamy is legal, would bring his half dozen or so legal wives to our country, the marriage of the six spouses to the one spouse would not be considered legal or valid by us,” citing Van Voorhis v. Brintnall, supra]; Rubman v. Rubman, 140 Misc. 658, 670 (1931) [“The statutory provision that a marriage is void if contracted by a person whose husband or wife by a former marriage is living, is declarative of public policy”]; see Simmons v. Simmons, 208 A.D. 195 (1924).

Recently, the Supreme Court, New York County, reached the same conclusion in a civil matter. (Uboh-Abiola v. Abiola, NYLJ, June 12, 1992, at 22, col 1 [Sup Ct, NY County].) There, the plaintiff alleged that she was married to the defendant in Nigeria and was one of defendant’s 25 wives. The court refused to recognize the alleged marriage, holding that “[b]igamous or polygamous marriages even if legal where contracted are not considered valid as a matter of law and public policy.” (Id., citing Application of Sood, 208 Misc. 819 (1955), aff’d 1 A.D.2d 939 (1956).)

Research by this court reveals that this is the first case in New York State in which a defendant asserted the validity of an admittedly bigamous marriage as a defense to a criminal charge.

For purposes of this in limine ruling, the parties have stipulated that defendant Dr. Ezeonu was already legally married in New York and Nigeria at the time when he purportedly married complainant. Dr. Ezeonu has advised the court that he seeks to bring from Nigeria for trial both eyewitnesses to the purported solemnization of the “marriage” and expert witnesses concerning the laws and customs applicable to such marriage in that country. While Nigerian law and custom may permit a “junior wife,” New York does not recognize such status. Since at the time of his “marriage” to complainant, Dr. Ezeonu was married to his living wife, his “marriage” to her is absolutely void even were it legally consummated in Nigeria. Consequently, this court holds, as a matter of law, Dr. Ezeonu is not married to Chiweta for purposes of criminal liability for rape in the second degree, pursuant to Penal Law §130.30.

Accordingly, he cannot raise the purported marriage as a defense to that crime.


Questions and Comments

(1) The Supreme Court has upheld laws criminalizing polygamy as early as 1878. In Reynolds v. United States, 98 U.S. 145, 166 (1878), the Supreme Court appears to base its decision at least partially on its observation that “[p]olygamy has always been odious among the northern and western nations of Europe, and … was almost exclusively a feature of the life of Asiatic and of African people.” In our contemporary age, which places great value upon respecting foreign cultures, should courts allow cultural defenses for criminal defendants? If so, how could courts prevent defendants like Ezeonu from abusing it to justify crimes like rape? Cultural defenses in criminal law have been a topic of enduring scholarly controversy. See, e.g., Note, The Cultural Defense in the Criminal Law, 99 Harv. L. Rev. 1293 (1986) (contemplating the circumstances under which cultural defenses could be allowed); Martin, All Men Are (or Should Be) Created Equal: An Argument Against the Use of the Cultural Defense in a Post– Booker World, 15 Wm. & Mary Bill Rts. J. 1305 (2007) (arguing that the cultural defense should not be allowed in federal sentencing); Cohan, Honor Killings and the Cultural Defense, 40 Cal. W. Int’l L.J. 177 (2010) (evaluating arguments in favor of and against allowing a cultural defense for honor killings).

(2) Judge Fisch cites in support of his ruling Uboh-Abiola v. Abiola, 207 (113) NYLJ (6-12-92) 22, col. 1B, reprinted in 56 New York Law Journal Digest Annotator 1992, 404:700.2. In Abiola, the plaintiff sought child custody, divorce, and equal distribution against a Nigerian tribal chief with more than 20 wives and billions of dollars in assets. The New York Supreme Court, New York County, dismissed the case for divorce and equitable distribution because it could not recognize as valid any polygamous marriage even if the marriage was legal where it was made, but granted child custody. The plaintiff argued that she did not know that the defendant had other wives until they were married. Nadine Brozan, Chronicle, N.Y. Times, Oct. 17, 1991, Should the court have made an exception and recognized the marriage in the interest of justice on the grounds that the plaintiff did not know that she was entering into a polygamous marriage? Why or why not?

In re Marriage of J.B. and H.B.

326 S.W.3d 654 (Tex. App. 2010)


Does a Texas district court have subject-matter jurisdiction over a divorce case arising from a same-sex marriage that occurred in Massachusetts? … We hold that Texas district courts do not have subject-matter jurisdiction to hear a same-sex divorce case. Texas’s laws compelling this result do not violate the Equal Protection Clause of the Fourteenth Amendment.…

        I.   Background

Appellee filed a petition for divorce in Dallas County in which he sought a divorce from H.B., whom appellee alleged to be his husband. Appellee alleged that he and H.B. were lawfully married in Massachusetts in September 2006 and moved to Texas in 2008. Appellee further alleged that he and H.B. “ceased to live together as husband and husband” in November 2008.

Appellee alleged in his divorce petition that there are no children of the marriage, born or adopted, and he requested a division of community property if a property-division agreement could not be reached. He prayed for a divorce, that his last name be changed back to his original last name, and “for general relief.” The record contains no answer by H.B.

A few days after appellee filed suit, the State intervened in the action “as a party respondent to oppose the Petition for Divorce and defend the constitutionality of Texas and federal law.” The Texas laws in question are article I, section 32(a) of the Texas Constitution and section 6.204 of the Texas Family Code. The federal law in question is the Defense of Marriage Act (DOMA), 28 U.S.C. §1738C.1 The State.… filed a plea to the jurisdiction in which it asserted, inter alia, that the trial court lacked subject-matter jurisdiction because appellee’s petition demonstrated on its face that he and H.B. were not “married” as a matter of Texas law. The State asserted that section 6.204(c) of the family code “strips courts of jurisdiction” to confer the legal status of marriage upon any relationship besides the union of one man and one woman—even if only for the purpose of granting a divorce.

The trial court denied the State’s plea to the jurisdiction without a hearing. In its order, the court concluded that article I, section 32(a) of the Texas Constitution and section 6.204 of the family code violates the Equal Protection Clause of the Fourteenth Amendment. It further concluded that it had jurisdiction “to hear a suit for divorce filed by persons legally married in another jurisdiction and who meet the residency and other prerequisites required to file for divorce in Dallas County, Texas.”[The State filed both a petition for writ of mandamus and an interlocutory appeal with the appellate court.] …

        IV.    Texas Courts Lack Subject-Matter Jurisdiction over Same-Sex Divorce Cases


The Texas Constitution was amended in 2005 to provide [in art. I, §32] as follows:

(a) Marriage in this state shall consist only of the union of one man and one woman.

(b) This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.

Under the Texas Family Code, the term “suit for dissolution of marriage” encompasses three distinct kinds of suits: suits for divorce, suits for annulment, and suits to declare a marriage void. Tex. Fam. Code Ann §1.003 (Vernon 2006); see also id. §§6.001-.206 (Vernon 2006 & Supp. 2009). In 2003, the legislature declared that same-sex marriages are void by adopting section 6.204, which provides in pertinent part as follows:

(b) A marriage between persons of the same sex or a civil union is contrary to the public policy of this state and is void in this state.

(c) The state or an agency or political subdivision of the state may not give effect to a

                      (1) public act, record, or judicial proceeding that creates, recognizes, or validates a marriage between persons of the same sex or a civil union in this state or in any other jurisdiction; or

                      (2) right or claim to any legal protection, benefit, or responsibility asserted as a result of a marriage between persons of the same sex or a civil union in this state or in any other jurisdiction.

Even before the adoption of section 6.204, the family code provided, “A [marriage] license may not be issued for the marriage of persons of the same sex.” Id. §2.001(b). The statute governing informal marriage also characterizes the relationship as a “marriage of a man and woman.” Id. §2.401(a).

Appellee did not plead for a declaration of voidness. Rather, he sought a [no-fault] divorce.…


… “Subject-matter jurisdiction … refers to the court’s power to hear a particular type of suit. “Subject matter jurisdiction is … never presumed and cannot be waived.” …

A Texas trial court may lack subject-matter jurisdiction over a particular case or claim for a variety of reasons, such as immunity from suit, exclusive federal jurisdiction, and the effect of an automatic bankruptcy stay. Difficulties occasionally arise when the legislature adopts a rule that imposes a mandatory requirement on a claimant but does not specify whether failure to satisfy that requirement defeats the court’s jurisdiction or merely means the claim fails on the merits. In such cases, we presume that the legislature did not intend to make the requirement jurisdictional unless application of statutory-interpretation principles reveals a clear legislative intent to the contrary.


The State argues that section 6.204(c) of the family code and section 32(b) of article I of the Texas Constitution strip Texas trial courts of jurisdiction in same-sex-divorce cases because adjudicating the merits of such a case would recognize or “give effect to a … right or claim” based on a same-sex marriage. Under the Texas Constitution, the state cannot “create or recognize” marriages other than between one man and one woman. Tex. Const. art. I, §32(b). Under section 6.204(c) of the Texas Family Code, the state cannot “give effect to a … right or claim to any legal protection, benefit, or responsibility asserted as a result of a marriage between persons of the same sex.” Tex. Fam. Code Ann. §6.204(c)(2). Appellee’s principal response is that the trial court does not adjudicate or establish the validity of a marriage in a divorce case, and thus a divorce case does not recognize or give effect to a same-sex marriage formed in another jurisdiction. Appellee also urges us to apply the “place-of-celebration test” and conclude that he and H.B. are validly married for the limited purpose of adjudicating his divorce petition.


… Section 6.204(b) declares same-sex marriages void and against Texas public policy. Tex. Fam. Code Ann. §6.204(b). “Void” means having no legal effect. [citing cases] Thus, section 6.204(b) means that same-sex marriages have no legal effect in Texas. See also Tex. Const. art. I, §32.

Next, section 6.204(c)(1) provides that Texas and its agencies and subdivisions may not give any effect to any public act, record, or judicial proceeding that creates, recognizes, or validates a same-sex marriage “in this state or in any other jurisdiction.” Thus, section 6.204(c)(1) amplifies section 6.204(b) by providing explicitly that the rule of voidness applies even to same-sex marriages that have been recognized by another jurisdiction. Further, section 6.204(c)(1) mandates that Texas courts may not give any legal effect whatsoever to a public act, record, or judicial proceeding that validates a same-sex marriage. See also Tex. Const. art. I, §32. In the case before us, appellee attached his Massachusetts marriage certificate to his divorce petition. Section 6.204(c)(1), which addresses “any public act, record, or judicial proceeding” that “creates, recognizes, or validates a same-sex marriage” in another jurisdiction, in this case, Massachusetts, provides the trial court may not give any legal effect to this document. Thus, section 6.204(c)(1) precludes any use of the marriage certificate in this case.

Section 6.204(c)(2) forbids the state and its subdivisions from giving any effect to a “right or claim to any legal protection, benefit, or responsibility asserted as a result of a” same-sex marriage. Thus, the State may not give any legal effect even to a claim to a protection or benefit predicated on a same-sex marriage. A petition for divorce is a claim—that is, “a demand of a right or supposed right,” Webster’s Third New International Dictionary Unabridged 414 (1981)—to legal protections, benefits, or responsibilities “asserted as a result of a marriage,” Tex. Fam. Code Ann. §6.204(c)(2), one example of such a benefit being community-property rights. Under section 6.204(c)(2), the State cannot give any effect to such a petition when it is predicated on a same-sex marriage. If a trial court were to exercise subject-matter jurisdiction over a same-sex divorce petition, even if only to deny the petition, it would give that petition some legal effect in violation of section 6.204(c)(2). In order to comply with this statutory provision and accord appellee’s same-sex divorce petition no legal effect at all, the trial court must not address the merits. In other words, the court must dismiss for lack of subject-matter jurisdiction. See Ysasaga, 279 S.W.3d at 864 (“Jurisdiction refers to the power of a court, under the constitution and laws, to determine the merits of an action between the parties and render judgment.”).

Thus, in the instant case, section 6.204(c) precludes a trial court from giving any legal effect to appellee’s petition for divorce and all supporting documentation, and it deprives the trial court of subject-matter jurisdiction.

Our holding that section 6.204(c) is a jurisdictional bar is consistent with Mireles v. Mireles, wherein Jennifer Jack married and divorced Andrew Mireles. No. 01-08-00499-CV, 2009 WL 884815, at *1 (Tex. App. 2009). She then filed a “petition for bill of review” seeking to vacate the divorce decree on the ground that Mireles was actually born female, making their marriage a void same-sex marriage. The trial court granted Jack’s petition and set aside the divorce decree. The court of appeals affirmed. It concluded that Jack’s action was actually a collateral attack rather than a bill of review, but held that the collateral attack was proper because a void judgment “may be attacked collaterally with extrinsic evidence when the court ‘has not, under the very law of its creation, any possible power’ to decide the case.” “A Texas court has no more power to issue a divorce decree for a same-sex marriage than it does to administer the estate of a living person.” Id. By holding that the original trial court had no “power” to issue the divorce decree, the court of appeals held, in effect, that the trial court lacked the subject-matter jurisdiction to grant a divorce. Appellee argues that Mireles is factually distinguishable because the parties in that case were married in Texas, but we see nothing in the opinion indicating where the marriage ceremony took place. Moreover, such a factual distinction would be immaterial because the Texas Constitution and section 6.204 apply equally whether a same-sex marriage is contracted in Texas or in some other jurisdiction. Tex. Const. art. I, §32; Tex. Fam. Code Ann. §6.204(c).

Appellee contends that adjudicating a same-sex divorce does not “give effect” to a same-sex marriage because a divorce decree does not establish the validity of the marriage as against third parties. The Texas Constitution and section 6.204 of the Texas Family Code, however, forbid the State and its agencies from giving any effect whatsoever to a same-sex marriage.… A same-sex divorce proceeding would give effect to the purported same-sex marriage in several ways. For one, it would establish the validity of that marriage as to the parties involved under principles of res judicata and collateral estoppel. See Gray v. Gray, 354 S.W.2d 948, 949 (Tex. Civ. App. 1962) (“A suit for divorce presumes a valid marriage. At the trial on the merits the plaintiff must prove by a preponderance of the evidence that she was married to the defendant.”); cf. Mossler v. Shields, 818 S.W.2d 752, 753-54 (Tex. 1991) (per curiam) (dismissal of divorce action with prejudice was res judicata as to plaintiff’s claim of the existence of a common-law marriage). Moreover, in this very case appellee seeks to “give effect” to his marriage under Texas law by seeking a division of the parties’ community property in the event they are unable to agree on a property division. Community property is a paradigmatic legal benefit that is associated intimately and solely with marriage. See Tex. Fam. Code Ann. §3.002 (“Community property consists of the property, other than separate property, acquired by either spouse during marriage.”).

Furthermore, a divorce proceeding would “give effect” to a same-sex marriage. The inherent nature of a divorce proceeding requires both a respondent whom the petitioner seeks to divorce and a legally recognized relationship between the parties that the petitioner seeks to alter. An obvious purpose and function of the divorce proceeding is to determine and resolve legal obligations of the parties arising from or affected by their marriage. A person does not and cannot seek a divorce without simultaneously asserting the existence and validity of a lawful marriage. Texas law, as embodied in our constitution and statutes, requires that a valid marriage must be a union of one man and one woman, and only when a union comprises one man and one woman can there be a divorce under Texas law.

Appellee argues in the alternative that if the adjudication of his divorce action “gives effect” to a same-sex marriage, then the adjudication of a suit to declare his marriage void under section 6.307 of the family code would as well. Appellee points out that the family code authorizes the trial court to grant various forms of relief, such as temporary restraining orders and name changes, in any kind of suit for dissolution of marriage, whether the ultimate relief sought is a divorce, an annulment, or a declaration of voidness. There is also some authority that courts may order property divisions in voidness suits. See Hovious v. Hovious, 2005 WL 555219, at *6 (Tex. App. 2005).… A decree of voidness does not “give effect” to the void marriage but, just the opposite, establishes that the parties to the ostensible but void marriage were never married for purposes of Texas law. Also, orders granting ancillary relief, such as restraining orders and name changes, do not amount to “giving effect” to the void marriage. In the context of a voidness proceeding, such orders do not recognize or effectuate a marriage between the parties, or even a claim to marital benefits. They merely facilitate the disentanglement of the parties’ affairs when (1) they were never validly married in the eyes of Texas law and (2) at least one of the parties desires a judicial declaration to that effect.

We conclude that Texas courts have no subject-matter jurisdiction to adjudicate a divorce petition in the context of a same-sex marriage.2 Thus, the trial court had no subject-matter jurisdiction to adjudicate appellee’s petition for divorce.


Appellee argues that the trial court possesses subject-matter jurisdiction based on principles of comity because he was legally married in Massachusetts. Appellee further contends that Texas courts have long employed the comity-based “place-of-celebration rule” to determine whether a foreign marriage is valid for purposes of hearing a divorce, and that we should continue to apply that rule. He also cites cases from New York in which courts have entertained same-sex-divorce cases even though New York does not recognize same-sex marriages.

“Comity is a principle under which the courts of one state give effect to the laws of another state or extend immunity to a sister sovereign not as a rule of law, but rather out of deference or respect.” “Because comity is grounded in cooperation and mutuality, Texas should extend comity by recognizing the laws and judicial decisions of other states unless: (1) the foreign state declines to extend comity to Texas or sister states under the same or similar circumstances; or (2) the foreign statute produces a result in violation of this state’s own legitimate public policy.” Hawsey v. La. Dept. of Soc. Servs., 934 S.W.2d 723, 726 (Tex. App. 1996).

Appellee misconstrues the solidity of the place-of-celebration rule in Texas jurisprudence. In one of the more recent cases on point, the court rejected the place-of-celebration rule in favor of the most-substantial-relationship test and, based largely on Texas public policy, applied Texas law to ascertain the validity of marriages and divorces that took place in other countries. Seth v. Seth, 694 S.W.2d 459, 462-464 (Tex. App. 1985). In neither of the two cases cited by appellee did a Texas court actually use the place-of-celebration rule to give effect to a marriage that was valid in the place of celebration but void in Texas.… Moreover, we note that the place-of-celebration rule seems contrary to the family code’s general choice-of-law provision: “The law of this state applies to persons married elsewhere who are domiciled in this state.” Tex. Fam. Code Ann. §1.103.

Moreover, Texas has repudiated the place-of-celebration rule with respect to same-sex unions on public-policy grounds. The Texas Constitution provides that “[m]arriage in this state shall consist only of the union of one man and one woman.” Tex. Const. art. I, §32(a). The rule contains no exceptions for marriages performed in other jurisdictions, nor is its application limited to marriages performed in this state. Any common-law principle recognizing same-sex marriages performed in other jurisdictions must yield to the constitution. Moreover, the legislature has declared that same-sex marriages are contrary to Texas public policy. Tex. Fam. Code Ann. §6.204(b). We do not extend comity to the laws of other states if doing so would result in a violation of Texas public policy. The Supreme Court has also indicated that a state may invoke statutory voidness to deny comity to a marriage performed in another state. Loughran v. Loughran, 292 U.S. 216, 223 (1934) (“Marriages not polygamous or incestuous, or otherwise declared void by statute, will, if valid by the law of the state where entered into, be recognized as valid in every other jurisdiction.”) (emphasis added). Accordingly, we conclude that neither comity nor the place-of-celebration rule overcome the jurisdictional bar of section 6.204(c)(2).

Appellee has referred us to several recent New York cases that reach a different result, but Texas’s specific constitutional and statutory provisions addressing same-sex marriage make those cases inapposite. New York has no legislation or constitutional amendment specifically declaring that same-sex marriages are against the public policy of the state. See C.M. v. C.C., 21 Misc. 3d 926 (Sup. Ct. 2008) (“[T]he New York State legislature has not enacted any statute that would prohibit recognition of a same sex marriage from another jurisdiction, nor is there any constitutional amendment barring recognition of such marriages.”). Rather, its highest court has inferred that New York’s general marriage statutes, adopted in 1909, limit marriage to opposite-sex couples. Hernandez v. Robles, 855 N.E.2d 1, 6 (2006). Because New York has no clear declaration of a public policy forbidding same-sex marriages, some New York courts have relied on comity to extend recognition to same-sex marriages performed in other jurisdictions for the purpose of entertaining divorce actions. See, e.g., Beth R. v. Donna M., 19 Misc. 3d 724 (Sup. Ct. 2008) (relying on comity to deny defendant’s motion to dismiss same-sex-divorce action); accord C.M., supra; see also Dickerson v. Thompson, 73 A.D.3d 52 (2010) (holding that New York courts have subject-matter jurisdiction to entertain suits to dissolve same-sex civil unions entered in another jurisdiction). But, as the court noted in Beth R., comity governs the recognition of out-of-state marriages only in the absence of “overriding legislation.” We have just such overriding legislation in Texas, where the constitution expressly limits “marriage” to opposite-sex couples, section 6.204(b) of the family code declares same-sex marriages to be contrary to public policy, and section 6.204(c) denies legal effect to same-sex marriages even if contracted in another jurisdiction. Thus, the New York cases relied on by appellee are inapposite.[ft] In contrast to the New York cases, courts in other jurisdictions have held that they lack jurisdiction to dissolve same-sex marriages or civil unions despite the validity of those unions in the jurisdictions where they were celebrated. See Rosengarten v. Downes, 802 A.2d 170, 184 (Conn. App. Ct.); Kern v. Taney, 11 Pa. D. & C. 5th 558, 576 (Ct. Comm. Pleas Pa. 2010); Chambers v. Ormiston, 935 A.2d 956, 958, 967 (R.I. 2007). Like the New York cases, these cases are of limited usefulness because Texas’s marriage laws differ from those at issue in those cases.


We hold that Texas courts lack subject-matter jurisdiction to entertain a suit for divorce that is brought by a party to a same-sex marriage, even if the marriage was entered in another state that recognizes the validity of same-sex marriages.

[The court further concluded that the Texas laws do not violate the equal protection clauses of the U.S. Constitution.] …


Questions and Comments

(1) Is it clear that the Texas statute and constitutional provision at issue deprive the Court of an ability to grant a divorce to individuals who have entered into a valid same-sex marriage elsewhere? If both J.B. and H.B. continue to reside in Texas, can any state grant them a divorce? What are the practical consequences of the court’s decision for J.B. and H.B? Does it seem ironic that Texas wishes to enforce its strong public policy against same-sex marriage in a manner that could result in this couple being perpetually married under Massachusetts law?

(2) In recent years, states and nations have been grappling with the interjurisdictional recognition of same-sex marriages and other same-sex legal relationships. Several states and nations allow same-sex couples to marry. Some others permit same-sex couples to create rights, either equivalent to or short of full marital rights, through vehicles other than marriage, including domestic partnerships and civil unions. State laws in this area change regularly, but as of July 2014 nineteen states and the District of Columbia issued marriage licenses to same-sex couples; two more states offer equivalent rights through civil unions and/or domestic partnerships, and one state offers partial marital rights. About half of U.S. states have opted not to recognize same-sex marriages, however, with some adopting constitutional prohibitions against same-sex marriage and others passing statutory prohibitions. Some of these restrictive laws also affect civil unions and domestic partnerships. Many but not all of the restrictive laws also state that same-sex marriages or relationships formed in other states will not be recognized. The status of marriage and other relationship-recognition laws is constantly changing and is reported at

In addition, as mentioned in Marriage of J.B., Congress in 1996 enacted the Defense of Marriage Act (“DOMA”), 28 U.S.C. §1738(c), which provides: “No State … shall be required to give effect to any public act, record, or judicial proceeding of any other State … respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State.”

Courts in other states have, like Texas, upheld the constitutionality of state and federal laws that enable a state court to refuse to recognize same-sex marriages performed elsewhere. See, e.g., Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005) (upholding DOMA and Florida nonrecognition statute in face of full faith and credit, due process, and equal protection clause challenges); Langan v. St. Vincent’s Hospital of New York, 25 A.D.3d 90 (N.Y. App. Div. 2005) (upholding state prohibition on same-sex marriage despite state and federal equal protection clause challenges); Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971); Andersen v. King County, 138 P.3d 963 (Wash. 2006 (en banc)); Conaway v. Deane, 932 A.2d 571 (Md. 2007). Courts in California and Iowa have struck down same-sex marriage prohibitions on state constitutional grounds, In re Marriage Cases, 183 P.3d 384 (Cal. 2008); Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009). The California case was overturned by state constitutional amendment in November 2008. We briefly examine the constitutionality of these state and federal laws at infra pages 600.

(3) Do J.B. and H.B. lose all rights arising from their marriage as soon as they cross the border into one of the restrictive states? What if they were in the process of adopting a child when they moved and the agency restricts adoption rights to married couples? Would J.B. and H.B. lose marital rights even if one or both of them, living in Massachusetts, were just visiting a restrictive state? Suppose, for example, that J.B. traveled from Massachusetts to Texas for a short visit and was seriously injured while there. Would H.B. be entitled to make medical decisions for J.B.?

(4) At least two states, New York and Maryland, affirmatively chose to give full marital rights to same-sex couples married elsewhere even though the same marriage performed in the state would not have been recognized as valid at the time. In Martinez v. County of Monroe, 850 N.Y.S.2d 740 (N.Y. App. Div. 4th Dept. 2008), for example, a state employee and her partner were held entitled to spousal health care benefits on the basis of a marriage validly celebrated in Canada, notwithstanding the fact that the couple resided in New York at the time of the marriage. The court relied heavily on May’s Estate, reasoning that although the marriage could not have been formed in New York, there was no positive prohibition on state recognition of a same-sex marriage formed elsewhere, and the natural law exception to marriage recognition was deemed inapplicable.

Concern about the lack of interstate recognition of same-sex marriage led another New York court to stretch state adoption laws to protect the parental rights of a same-sex couple. In re Adoption of Sebastian, 879 N.Y.S.2d 677 (N.Y. Sur. 2009), involved a Dutch same-sex married couple who produced a child by using the egg of one spouse which was fertilized and implanted into the womb of the other spouse, where it was carried to term. The child’s birth certificate listed only the birth mother as a parent, and the couple petitioned the court, seeking recognition of parental rights for the spouse who donated the egg. Given her biological relationship to the child and her marriage to the person recognized as the child’s “mother,” her parental rights should have been recognized everywhere. However, the widespread denial of marital rights to same-sex couples by other states led the court to conclude that the couple could only be adequately protected through a decree of legal adoption, which it granted. New York law currently recognizes the validity of same-sex marriage performed within and without the state.

There is an enormous literature on choice of law and same-sex marriages. Some of the better articles include Koppelman, Same-Sex Marriage, Choice of Law, and Public Policy, 76 Tex. L. Rev. 921 (1998); Fruehwald, Choice of Law and Same-Sex Marriage, 51 Fla. L. Rev. 799 (1999); Kramer, Same-Sex Marriage, Conflict of Laws, and the Unconstitutional Public Policy Exception, 106 Yale L.J. 1965 (1997); Myers, Same-Sex “Marriage” and the Public Policy Doctrine, 32 Creighton L. Rev. 45 (1998); Silberman, Same-Sex Marriage: Refining the Conflict of Laws Analysis, 153 U. Pa. L. Rev. 2195 (2005).

(5) In Port v. Cowan, 426 Md. 435, 44 A.3d 970 (2012), the Maryland Supreme Court recognized a same-sex marriage legally celebrated in California and ruled that the couple was eligible for a divorce in Maryland. Although Maryland law then defined marriage as “only between a man and a woman,” the court ruled that recognizing same-sex marriages legally celebrated in other states was not repugnant to Maryland public policy, because no law explicitly banned such recognition and the state legislature had failed on many occasions to enact a law to that effect. Do you agree with the Maryland Supreme Court that Maryland law does not ban the recognition of same-sex marriage legally celebrated in other jurisdictions? Why or why not?

E.   Property

Selections from the First Restatement of Conflicts, on Real Property

§§211, 214, 216-223, 225-227, 237-238, 244-246, 248-251 (1934)

§211. Property in Tangible Thing: Where Created

The original creation of property in a tangible thing is governed by the law of the state where the thing is at the time of the events which create the interests.

§214. Legal Effect and Interpretation of Words Used in an Instrument of Conveyance

            (1) Words used in an instrument of conveyance of an interest in land which, by the law of the state where the land is, have a given operative effect irrespective of the intent of the conveyor, will be accorded such effect in any state.

            (2) Words used in an instrument of conveyance of an interest in land which, by the law of the state where the land is, have a given operative effect             unless a contrary intent is shown by admissible evidence, will be accorded such effect in any state.

            (3) The meaning of words used in an instrument of conveyance of an interest in land which, by the law of the state where the land is, are accorded neither of the effects described in Subsections (1) and (2), is in the absence of controlling circumstances to the contrary, determined in accordance with usage at the domicile of the conveyor at the time of the conveyance.

§216. Capacity to Convey Interest in Land

Capacity to make a valid conveyance of an interest in land is determined by the law of the state where the land is.

§217. Formalities of Conveyance of Interest in Land

The formalities necessary for the validity of a conveyance of an interest in land are determined by the law of the state where the land is.

§218. Substantial Validity of Conveyance of Interest in Land

Whether a conveyance of an interest in land, which is in due form and is made by a party who has capacity to convey it, is in other respects valid, is determined by the law of the state where the land is.

§219. Capacity of Grantee to Take or Hold Land

Whether the grantee in a conveyance of an interest in land is capable of taking or holding the interest is determined by the law of the state where the land is.

§220. Effect of Conveyance of Interest in Land

The effect upon interests in land of a conveyance is determined by the law of the state where the land is.

§221. Nature of Interest Created by Conveyance of Land

The nature of the interest in land created by a conveyance is determined by the law of the state where the land is.

§222. Non-Possessory Interests in Land

The creation, transfer and termination of non-possessory interests in land are determined by the law of the state where the land is.

§223. Transfer of Interest in Land by Operation of Law

An interest in land can be transferred by operation of law only by the law of the state where the land is.

§225. Mortgage on Land; By What Law Determined

The validity and effect of a mortgage on land is determined by the law of the state where the land is. [But refer back to pages 3536 supra, and read again comment (a) to §333 concerning contracts.]

§226. Assignment of Mortgage on Land

The validity and effect of an assignment of a mortgage on land are determined by the law of the state where the land is.

§227. Foreclosure of Mortgage on Land

The method and effect of the foreclosure of a mortgage on land are determined by the law of the state where the land is.

§237. Effect of Marriage on Existing Interests in Land

The effect of marriage upon interests in land owned by a spouse at the time of marriage is determined by the law of the state where the land is.

§238. Effect of Marriage on an Interest in Land Later Acquired

The effect of marriage upon an interest in land acquired by either or both of the spouses during coverture is determined by the law of the state where the land is.

§244. Equitable Conversion of Trust Property

Whether the interest of the beneficiary of a trust of land is real estate or whether, because of a direction to sell the land, it is personal property, is determined by the law of the state where the land is.

§245. Inheritance of Land

The law of the state where the land is determines its devolution upon the death of the owner intestate.

§246. Legitimacy of Claimant by Descent

A person who is heir by the law of the state where the land is, only if legitimate, is heir if, but only if, he is born legitimate as stated in §138 or has been legitimized as stated in §139 and §140.

§248. Share of Spouse in Land upon Termination of Marriage

            (1) The existence and extent of a common law or statutory interest of a surviving spouse in the land of a deceased spouse are determined by the law of the state where the land is.

            (2) The effect of divorce upon the interest of one spouse in the land of another is determined by the law of the state where the land is.

§249. Will of Land

The validity and effect of a will of an interest in land are determined by the law of the state where the land is.

§250. Revocation of Will of Land

The effectiveness of an intended revocation of a will of an interest in land is determined by the law of the state where the land is.

§251. Interpretation, Construction and Effect of Will of Land

            (1) Words used in a devise of an interest in land which, by the law of the state where the land is, have a given operative effect irrespective of the intent of the testator, will be accorded such effect in any state.

            (2) Words used in a devise of an interest in land which, by the law of the state where the land is, have a given operative effect unless a contrary intent is shown by admissible evidence, will be accorded such effect in any state.

            (3) The meaning of words used in a devise of an interest in land which, by the law of the state where the land is, are accorded neither of the effects described in Subsections (1) and (2), is, in the absence of controlling circumstances to the contrary, determined in accordance with usage at the domicile of the testator at the time when the will was made.

Burr v. Beckler

264 Ill. 230, 106 N.E. 206 (1914)


The appellee, Shelton C. Burr, filed his bill in the circuit court of Cook county against Ednah J. Tobey (now Ednah J. Beckler), Charles H. Tobey, and William E. Church, trustee, to foreclose a trust deed dated March 11, 1905, made by Ednah J. Tobey and Charles H. Tobey, who was then her husband, conveying certain real estate in Chicago to secure a note of that date made by Ednah J. Tobey, payable to her own order five years after date, with interest, and endorsed by her. Ednah J. Tobey answered, alleging that she was induced to execute the note and trust deed by the false and fraudulent representation of her said husband, Charles H. Tobey; that Shelton C. Burr had notice of the fraud and was not a bona fide assignee of the note; and that the note and trust deed were void for the reason that they were executed in the state of Florida while she was a feme covert and incapable by the laws of Florida of executing the same.… The [intermediate appellate] court also concluded that the note and trust deed were not invalid because made in Florida while the maker was temporarily in that state, and because the note was dated at Chicago, Ill., and secured by real estate in this state, and the trust deed recited the residence of the grantors at Chicago.…

[I]f the note was void because executed in the state of Florida, the decree of the chancellor was in accordance with the law regardless of all other questions.

The validity, construction, force, and effect of instruments affecting the title to land depend upon the law of the state where the land lies.… But, if the note was void, the trust deed, which was incidental and intended to secure a performance of the obligation created by the note, could not be enforced. It is a universal rule that the validity of a contract is to be determined by the law of the place where it is made, and if it is not valid there it will not be enforced in another state in which it would have been valid if made there.…

A note takes effect from the time of its delivery and not from its date. Until the maker of a note parts with the possession and control of the instrument he may cancel it or dispose of it as he pleases, and a note is not executed until delivered. The note in this case was made in Florida, and the trust deed was signed at the same time and acknowledged before a notary public of the county of Dade, in that state. Charles H. Tobey had designated the United States mail as the means of transmission of the note and trust deed to him, and Ednah J. Tobey, in compliance with his request, deposited them in the mail in the state of Florida. When the note and trust deed were so deposited, Ednah J. Tobey, the maker, parted with the possession of and lost all control over the papers and all right to retake or reclaim them. Under such circumstances, the delivery was complete in Florida when the note and trust deed were placed in the mail, directed by Charles H. Tobey, trustee of the Ludington estate. … The fact that the domicile of Ednah J. Tobey was in Illinois did not enable her to execute a note in the state of Florida contrary to the laws of that state, under which she was not competent to enter into a contract. In Forsyth v. Barnes, supra, a man and his wife domiciled in the state of Illinois, made in Ohio a note and warrant of attorney authorizing the confession of a judgment. Judgment was taken in Ohio and an action of debt brought on the judgment in Illinois. It was held that the judgment entered on the warrant of attorney was void as against the wife, and subject to attack either directly or collaterally, because she was a feme covert, incapable at common law of executing the warrant, and in the absence of proof it would be presumed that the common law was in force in Ohio. The note was payable in Ohio, but that is not a ground of distinction, because the place where the contract is made determines its validity and the place of performance affects only the time, mode, and extent of the remedy. The law of the state of performance will govern in determining the rights of the parties and the effect of the contract, but if a party is not competent to make a contract, the contract is not valid and will not be enforced anywhere. The application of the rules of law in this case leads to the conclusion that the note was void.

The judgment of the Appellate Court is reversed, and the decree of the circuit court affirmed.

Thomson v. Kyle

39 Fla. 582, 23 So. 12 (1897)

… The appellee (complainant below), on November 14, 1891, filed a bill in equity in the circuit court of Alachua county, praying foreclosure of a mortgage on certain real estate situated in that county. The mortgage debt was evidenced by a note executed by the appellants (defendants below) to complainant, under date January 18, 1890, for $2,932, due April 10, 1890, and payable in the city of Birmingham, Alabama. The mortgage given to secure this note was executed on the same day by the defendants. The defendant, Della K. Thomson, filed her plea on January 4, 1892, whereby she alleged that prior and subsequent to, and at the time of, the execution of the note and mortgage, she was a married woman, the wife of her codefendant, and seised and possessed of a statutory separate estate in her own individual right and control, part of which was embraced in the mortgage; that the note and mortgage were executed in the state of Alabama, and that all transactions out of which the mortgage debt arose occurred in said state; that the mortgage debt was the debt of her husband exclusively, and she executed the note and mortgage as security only, and upon no other consideration; that by the laws of Alabama the obligation of a married woman executed for her husband’s debt was null and void, and incapable of enforcement, and that the note and mortgage, being void as to her in the state of Alabama, were likewise void in the state of Florida. This plea was, upon argument, overruled.…

CARTER, J. (after stating the facts).


The question presented by the plea of Della K. Thomson is an interesting one, and one upon which the authorities are not in entire accord. It is not denied by appellants that, had the mortgage sought to be foreclosed in this case been executed in this state, it would have been valid, and enforceable under our laws. Indeed, it has been held by this court, on more than one occasion, that a mortgage properly executed by a married woman and her husband, conveying the wife’s separate statutory real estate as security for her husband’s debt, is valid.… It is insisted, however, that under the laws of Alabama, a married woman is without capacity to bind herself or her property as security for the debt of her husband, and, as the mortgage sought to be enforced in this case was executed, and the debt secured thereby was payable, in that state, and all the parties were there domiciled, that those laws necessarily entered into and became a part of the contract, rendering it void in that state; and that, being void in Alabama, it is, by virtue of interstate law, void in Florida. It may be admitted that this argument has strong application to the note executed by Mrs. Thomson with her husband, which the mortgage was given to secure, for, the note being a general personal obligation, if void by the laws of the state in which it was executed and made payable, it ought likewise to be void in every other state where it is sought to be enforced. But it does not follow that because Mrs. Thomson is not bound by the note it is for that reason totally void. It still remains a valid obligation of her husband, which she can, in this state, secure by a mortgage of her separate statutory property. We do not understand that any principle of interstate law requires us to test the validity or sufficiency of conveyances of or liens upon real estate in this state by the laws of other states or nations, even though such contracts may have been executed, or given to secure the performance of some act, within their jurisdiction. The reasons why we should not are obvious. The subject-matter, with reference to the title of which the conveyance or lien is executed, being at the time of such execution an immovable thing, not only located beyond the control of that sovereignty within whose jurisdiction the contract is executed, and forever so to remain, but then within the exclusive jurisdiction of another independent sovereignty, and forever so to remain, the parties to such conveyance are presumed to have contracted, at least so far as the immovable thing is concerned, with reference to the laws of that jurisdiction within whose borders the thing is situated. And no sovereign state, without express legislative sanction, is presumed to surrender to owners of immovable property within its limits the power to incumber or charge the title thereto in any other manner than that pointed out by its laws. It is, therefore, almost universally held that so far as real estate or immovable property is concerned, we must look to the laws of the state where it is situated for the rules which govern its descent, alienation, and transfer, and for the construction, validity, and effect of conveyances thereof…; and it is to the same law that we must look for the rules governing the capacity of the parties to such contracts or conveyances, and their rights under the same.… It would seem, therefore, that upon principle the mortgage in this case should be subjected to the laws of this state, in order to ascertain its validity, construction, and the capacity of the parties to execute it, rather than to the laws of the state of Alabama, within whose borders the real estate is not situated, and as to which her laws can have no extraterritorial effect. While a contrary opinion was entertained in Ohio, … it has been held in several well-considered cases that, although by the laws of the state of a married woman’s domicile she has no capacity to execute a mortgage upon her separate estate as security for the debt of her husband, yet if she, in that state, executes a mortgage of that character upon real estate situated in another state, whose laws permit a married woman to mortgage her property to secure such a debt, the mortgage will, in the latter state, be held valid, and enforceable in its courts by appropriate proceedings.… We hold that, notwithstanding Mrs. Thomson’s incapacity by the laws of Alabama to execute the mortgage sought to be foreclosed here, she was capable, under our laws, of executing in Alabama a mortgage upon her separate statutory real property in this state to secure her husband’s debt, and that her plea was properly overruled. This conclusion also disposes of those portions of the cross bill and answer of the defendant John M. Thomson which cover the same matters as this plea.

The answer and cross bill of the defendant John M. Thomson alleged that there was included in the obligation evidencing the mortgage debt the sum of $300, which, under the laws of the state of Alabama, was usurious interest, and that under the laws of that state usury forfeited all interest upon the principal debt as to which unlawful interest was charged. As this obligation was a personal one, and it was executed and to be performed in the state of Alabama, having no reference to immovable property in this state, we think its validity and interpretation are governed by the laws of the former state. Perry vs. Lewis, 6 Fla. 555. Therefore, although in this state there were no laws against usury at the time of the execution of this obligation, yet, if it is tainted with usury by the laws of Alabama, where it was executed and made payable, and where all the parties resided at the time of its execution, we think the infirmity follows it to this state, even when secured by a mortgage on lands in this state. The authorities are not entirely unanimous on this point, but we think the weight of them, supported by principle, sustains the proposition that a note executed and payable in one state, though secured by a mortgage on lands in another, will be governed, as to the rate of interest it shall bear, by the laws of the former; and if, by such laws, all interest is forfeited for usury, the same result will follow, upon foreclosure of the mortgage securing it, in the state where the mortgaged lands are situated.…


Questions and Comments

(1) Do the Burr and Thomson cases reach inconsistent results? Would it have made a difference in Burr if Charles had joined Ednah in making the note for which foreclosure on the mortgage was sought?

(2) Was the purpose of the Florida common-law rule of coverture served by invalidating a note made by Ednah Tobey, an Illinois resident? Was the purpose of the Alabama coverture rule fulfilled in the Thomson case by allowing her to mortgage her Florida land? What purpose of Florida law might have been served by the ruling in the Thomson case?

(3) If Alabama, with its coverture rule, followed the same conflicts approach as Florida in the Thomson case, what would happen in an Alabama case in which a Florida woman had executed a guaranty of her husband’s note in Florida, to be paid in Florida and secured by a mortgage of land in Alabama? Wouldn’t the note be enforceable under the Thomson approach, while the mortgage would not be? But if the note was enforceable, could the resulting judgment be satisfied by execution against the Alabama land? If so, has striking down the mortgage been limited in effect to depriving the mortgage holder of priorities that it would have had over other creditors? Has it failed in its essential purpose of protecting the married woman from her husband’s overreaching? If so, what good (to Alabama) would the Thomson rule be? Even if Alabama used such reasoning to reject the Thomson approach, couldn’t the plaintiff in this hypothetical get a judgment in Florida, which would apply its own law to the note, and demand enforcement of the judgment against the land in Alabama under the full faith and credit clause of the Constitution? If so, is there any way for Alabama to protect its married women, or are the conflicts rules stacked against the Alabama policy in this situation?

(4) Why all of the emphasis on the situs of real property, especially when—as we shall see—no similar obsession is present with personal property? The situs rule is frequently criticized by proponents of modern approaches to choice of law. See, e.g., Weintraub, Obstacles to Sensible Choice of Law for Determining Marital Property Rights on Divorce or in Probate: Hanau and the Situs Rule, 25 Hous. L. Rev. 1113 (1988); Leflar, American Conflicts Law 410-411 (1968). Professor Leflar defends the rule on the grounds that our title recording systems are set up territorially, and a would-be purchaser needs to be able to rely on the applicability of situs law in performing a title search.

Other reasons that have been given include the fact that (a) only the state in which land is located has physical power over it (and, as we shall see in the chapter on full faith and credit to judgments, the principle is carried so far that a judgment of State A, purporting to directly affect title to land in State B, is ineffective even if State A possesses jurisdiction over all the concerned parties); (b) real property is of greatest concern to the state in which it is located (though one may ask, for example, whether that has anything to do with whether an out-of-state wife can guaranty the debts of her husband); and (c) it is rare that there is any uncertainty as to the location of land. See Introductory Note to §214 of the Restatement of Conflict of Laws Second (Tentative Draft No. 5, April 24, 1959) (not contained in the final draft as promulgated).

For an unusual case in which the location of land itself was in question, see Durfee v. Duke, 375 U.S. 106 (1963), page 558 infra, in which title was disputed because the Missouri River, forming the border between Nebraska and Missouri, had changed course.

Selections from the First Restatement of Conflicts, on Personal Property

§§255-258, 260-261, 289-291, 300-302, 306-307 (1934)

§255. Capacity to Convey Chattel

Capacity to make a valid conveyance of an interest in a chattel is determined by the law of the state where the chattel is at the time of the conveyance.

§256. Formalities of Conveyance of Chattel

The formal validity of a conveyance of an interest in a chattel is determined by the law of the state where the chattel is at the time of conveyance.

§257. Substantial Validity of Conveyance of Chattel

Whether a conveyance of a chattel which is in due form and is made by a party who has capacity to convey it is in other respects valid, is determined by the law of the state where the chattel is at the time of conveyance.

§258. Nature of Interest Created by Conveyance of Chattel

The nature and characteristics of an interest created by a conveyance of an interest in a chattel is determined by the law of the place where the chattel is at the time of the conveyance.

§260. Moving Chattels into Another State; Effect on Title

An interest in a chattel acquired in accordance with the law of the state in which the chattel is at the time when the interest is acquired will be recognized in a state into which the chattel is subsequently taken.

§261. Chattel Embodied in a Document

(1) Whether the title to a chattel is embodied in a document is determined by the law of the place where the chattel is at the time when the document is issued.

(2) The validity of a conveyance of a chattel, title to which is embodied in a document, depends upon the validity of the conveyance of the document.

(3) The validity of a conveyance of a document in which title to a chattel is embodied as stated in Subsection (1), is determined by the law of the place where the document is at the time of the conveyance.

§289. Effect of Marriage on Title to Existing Movables

At marriage the husband and wife respectively acquire such rights or other interests in movables then belonging to the other as are given by the law of the domicil of the husband at the time of marriage.

§290. Movables Acquired During Marriage

Interests of one spouse in movables acquired by the other during the marriage are determined by the law of the domicil of the parties when the movables are acquired.

§291. Removal of Movables of Spouses to Another State

Interests in movables acquired by either or both of the spouses in one state continue after the movables have been brought into another state until the interests are affected by some new dealings with the movables in the second state.

§300. Devolution of Chattels on Death of Owner

At the death of the owner of chattels the title to the chattels passes to the executor or administrator appointed by the court of the state in which the chattels are habitually kept.

§301. Right of Widow or Child Outside Will

The right or other interest of a widow, child, or other person to a share of the movables of a decedent in preference to legatees is determined by the law of the state in which the decedent died domiciled.

§302. Enforcement of Widow’s Allowance in Another State

If a widow’s allowance has been granted by a court in the state of domicile of her deceased husband, it constitutes a valid claim against movable assets in another state.

§306. Will of Movables

The validity and effect of a will of movables is determined by the law of the state in which the deceased died domiciled.

§307. Revocation of Will of Movables

Whether an act claimed to be a revocation of a will is effective to revoke it as a will of movables is determined by the law of the state in which the deceased was domiciled at the time of his death.

Blackwell v. Lurie

71 P.3d 509 (N.M. Ct. App. 2003)


Robert Blackwell, liquidating trustee in bankruptcy (the Liquidating Trustee), appeals from an order of the district court quashing his petition for writ of execution. Pursuant to our conflict of laws rule, we conclude that Missouri law governs the characterization of the property at issue and that Ronald and

Only gold members can continue reading. Log In or Register to continue