This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
The attempt has repeatedly been made to state the rules involved in the subject of conflict of laws in a simple form, substituting a broad generalization for a detailed statement. The original form of simple statement attempted, was that the law of the place where the contract was made was to control.1 This rule, however, was soon seen to be inexact. The cases in which it was laid down were, many of them, cases in which the place of the making of the contract and the place of performance were the same.2 In others, no place of performance was specified; and accordingly the presumption arose that the place of performance was the same place as that at which the contract was entered into.3 If the contract is to be performed where made, the law of that jurisdiction is said to control.4 When cases have arisen in which the place of performance was different from the place at which the contract was entered into, it is seen that a blind adherence to the original rule would result in much injustice. The place at which the contract is entered into is often accidental. The place of performance is deliberately selected by the parties. Accordingly it has repeatedly been said that the law of the place of performance controlled as to the validity, nature, obligation and intention. The same court has changed the general form of expression of this rule repeatedly. Thus the Supreme Court of the United States has said that the law controlling a contract is the law of the place where it is made;6 that it is the law of the place of performance ;7 that the law of the place of performance of the contract regulates matters connected with its performance; while matters bearing upon the execution, interpretation and validity of the contract are determined by the law of the place where it is made ;8 and this view has in turn been qualified and the law of the place of performance has been held to govern as to validity9 or construction.10 The truth is that the attempt to express the principles involved in a discussion of this subject in the form of a broad, sweeping generalization is an attempt to perform the impossible. It cannot be done except by the arbitrary process of ignoring most of the cases which have been decided, and selecting arbitrarily that limited line which will support the desired general statement. To state the law fairly and accurately requires a much greater detail of statement than any of the rules thus far suggested, involve. The different elements in the formation of a contraction, offer and acceptance, consideration, subject-matter, and capacity of the parties, must be considered first; then the separate topics under operation, construction and discharge.
6 Clark v. Eltinge, 29 Wash. 215; 69 Pac. 736.
1 Cox v. United States, 6 Pet. (U. S.) 172; Wolf v. Burke, 18 Colo. 264; 19 L. R. A. 792; 32 Pac. 427; Brackett v. Norton, 4 Conn. 517; 10 Am. Dee. 179; Pennsylvania Co. v. Fairchild, 69 111. 260; Ford v. Ins. Co., 6 Bush. (Ky.) 133; 99 Am. Dec. 663; Emerson County v. Proctor, 97 Me. 360; 54 Atl. 849; Milli-ken v. Pratt, 125 Mass. 374; 28 Am. Rep. 241; Smith v. Godfrey, 28 N. H. 379; 61 Am. Dec. 617; China Mutual Ins. Co. v. Force, 142 N. Y. 90; 40 Am. St. Rep. 576; 36 N. E. 163
874; Dyke v. Ry., 45 N. Y. 113; 6 Am. Rep. 43; Knowlton v. Ry., 19 O. S. 260; 2 Am. Rep. 395.
2 Phinney v. Phinney, 81 Me. 450; 10 Am. St. Rep. 266; 4 L. R. A. 348; 17 Atl. 405; Kulp v. Fleming, 65 O. S. 321; 87 Am. St. Rep. 611; 62 N. E. 334.
3 Pritchard v. Norton, 106 U. S. 124; Lewis v. Headley, 36 111. 433; 87 Am. Dec. 227; Young v. Harris, 14 B. Mon. (Ky.) 556; Toledo First National Bank v. Shaw, 61 N. Y. 294.
4 Daniels v. Ry., 184 Mass. 337; 68 N. E. 337.