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The Attitude of the Common Law
Published online by Cambridge University Press: 16 January 2009
Extract
The English text-book writers have very little to say about conflicts in matters of quasi-contract. Dicey, who devotes only a short note to the question, is chiefly concerned with the problem of ‘classification’ and leaves it, otherwise, very much in the air. He refers in a footnote, without any discussion of its import, to a solitary case and gives no indication as to the rules which should, in his opinion, govern the matter. Westlake treats the question with more respect but with a lack of precision. He does not attempt any analysis of the different states of fact which may give rise to the problem in practice, nor does he discuss in any detail the rules to be applied. He confines himself to the statement that there can be little doubt that the proper law of a quasi-contractual obligation ought generally to be drawn from the place with which the act that occasions it has the most real connexion. Burge's Colonial and Foreign Law contains a somewhat obscure passage dealing with a very recondite aspect of the matter, but is otherwise confined to a short, statement of the views of certain Continental authors. Baty dismisses the question as being ‘comparatively unimportant’ Foote and Cheshire ignore the problem altogether, as also do the editors of the relevant title in the Hailsham edition of Halsbury's Laws of England.
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- Copyright © Cambridge Law Journal and Contributors 1939
References
4 Conflict of Laws, 5th ed. at p. 783.
5 Batthyany v. Walford (1887) 36 Ch. D. 269.
6 Private International Law, 7th ed. § 235. He refers to De Greuchv v. Wills (1879) 4 C. P. D. 362.
7 2nd ed. vol. ii, p. 39.
8 Ibid. pp. 484 and 485.
9 Polarized Law, pp. 51 and 52.
10 Dr. Frankenstein (Internationales Privatrecht, ii, p. 392, note 31) suggests that Re Bonacina [1912] 2 Ch. 394, may, perhaps, be treated as a case of the application of the doctrine of unjustified enrichment, but this was not the issue and the decision proceeded on other grounds.
11 § 452.
12 § 453.
13 Treatise on the Conflict of Laws, 1935, vol. ii, p. 1429.
14 Treatise on the Conflict of Laws, 2nd ed. at p. 484.
15 See Winfield, The Province of the Law of Tort, p. 139; Holdsworth, ‘Unjustifiable Enrichment’, 55 L. Q. R. 37. Cf. C. L. J. vol. v at pp. 224, 225.
16 In the case of general average the accepted rale is that the proper law is that of the port at which the adventure is lawfully terminated. Moreover the York-Antwerp Rules, 1924, which are the product of unification, are applicable in the majority of instances of conflict. Salvage is covered to some extent by international agreement. (See Maritime Conventions Act, 1911, 88. 6 and 7; Air Navigation Act, 1920, s. 11.) The outstanding problems are being considered by the International Maritime Committee and C. I. T. B. J. A. (See Bulletin No. 102 of the International Maritime Committee, 1938.)
17 Ubi supra. See also Dicey, op. cit. p. 783 and Beckett, ‘Classification in Private International Law’, British Year Book of International Law, 1934, vol. xv, p. 62, note 4.
18 Loucks v. Standard Oil Co., 224 N. Y. 99, cited by Unger, ‘The Place of Classification in Private International Law’, The Bell Yard, No. xix, p. 7. It cannot be said that it is contrary to the policy of English law to enforce quasi-contractual rights based on unjustifiable enrichment. Many claims based on this ground are in fact recognized. See 5 C. L. J. at p. 226 and L. Q. R, vol. 55 at p. 44.
19 Ubi supra.
20 [1904] 1 K. B. 493.