case is not well reported, for it is not clear what it was that the plaintiff failed to prove, the facts or the Scotch law. Again, the counsel for the defendant stated, as if it were settled law, that the contract was not for necessaries, and was not binding by English law, but in a case before Lord Alvanley, a year or two later, the learned judge distinctly ruled, that money paid for an infant to stay execution could be recovered. But taking the case as it stands, as a decision that the validity of a contract must be judged by the lex loci contractûs, is not this quite distinct from the proposition that the capacity to contract must be decided by the same law? The validity of a contract certainly depends upon capacity, amongst other things. "Four conditions," says the French code, " are essential to the validity of a contract: (1.) consent; (2.) capacity to contract ; (3.) a certain object; (4.) a lawful cause or consideration." And further on we find that the persons incapable of contracting are minors, "les interdits," and in certain cases married women. Thus it follows that contracts of these classes of persons are invalid. But what is an invalid contract? It is not a void contract, that is, a contract which has never existed at all—a nullity. It is merely a voidable contract. And here, let me remark, that many English text-books show a remarkable oblivion of the important difference between void and voidable contracts, and that this looseness of expression has been the source of much confusion. "A voidable contract," to quote Mr. Pollock, "will have all its proper legal effects, unless it is disputed and declared invalid. And it can be disputed only by certain persons and under certain conditions." To return to the French code: Art. 1125 says that minors can only dispute their engagements on the ground of incapacity in cases provided by the law, and Art. 1305 tells us that all contracts may be rescinded in favour of a minor on the ground of injury (lésion). On the other hand, persons, "sui juris," who contract with minors, cannot repudiate the

contract on the plea of the minor's incapacity. We thus arrive at the following result: There are certain classes of contracts in the French law, which are primâ facie invalid, but which, as no one has a right of disputing them, have exactly the same effect as contracts which were valid from the beginning.

If we compare the English law on the subject, we shall find a very similar result. By our law a minor is incapable of contracting. His contracts will, however, be declared valid, if they appear to the Court to have been for necessaries, or, in some cases, for his benefit generally. We too, therefore, have a class of contracts which are primá facie invalid, but which the Court will declare to be valid. Moreover there is a rule in Equity, that if a minor has obtained a benefit on the faith of a representation that he was of full age, he is liable to the extent of that benefit. This is tantamount to saying that in such case if the minor has got his benefit, and is unable to restore it, he must pay for it. It is not an obligation to perform a contract, it is merely the application of a principle of common sense and justice, that an infant shall not take advantage of his own fraud. It is not a law of contract, but a law of procedure which the Courts of any country have the right to apply to all persons who sue in them.

The preceding remarks will, I think, show the correctness of my assertion that the case before Lord Eldon had nothing to do with personal capacity. The infant was equally incapable of contracting by the law of England and by the law of Scotland; the only question was whether the infant had a right to repudiate the contract, and that, said Lord Eldon, must be decided by the lex loci contractús. The only direct authority therefore for the statement that the capacity to contract is in English law determined by the lex loci turns out to be no authority at all. Mr. Fraser refers to the decisions on the marriages of English minors in Scotland. Now no one contends more strenuously than

this learned writer that marriage is not a contract at all. Therefore it is hardly consistent of him to quote decisions on the validity of marriages as an authority on the question of a contract. But assuming that there be some analogy, I would refer Mr. Fraser to Lord Campbell's judgment in the celebrated case of Brook v. Brook, where he says that Lord Hardwicke's Marriage Act does not touch the essentials of the contract, but only regulates the formalities. With regard to the case of Simonin v. Maillac, which was the case of a marriage between French minors to which the necessary consents had not been given, and which in Sottomayor v. De Barros is explained in the same way, namely, that the consent must be considered part of the ceremony of the marriage, I would venture to submit that it might be put upon another ground; that the French code, although it declares certain persons incapable of contracting marriage without the consent of their parents or guardians, says that such a marriage can only be disputed by certain persons and upon certain conditions. In other words, it is a voidable and not a void contract, and its validity must depend upon the lex loci contractus. I, however, entirely agree with Mr. Fraser, that marriage is not a contract, and therefore that on the question of a true contract. all arguments derived from the laws of marriage are apt to mislead us.

On the whole, then, it appears that the proposition, which so many writers have stated to be English law, is not supported by the authority either of judges or jurists. Perhaps Lord Justice Cotton went a little too far in saying that the principle he laid down was a well-recognised one, but if he had said, "It is a well-recognised principle of Private International Law, and there is no authority which prevents our applying it as English law, that the question of personal capacity to enter into any contract is to be decided by the law of domicile," the statement would have been perfectly correct. Of course, a statement by the Court, which is merely an enunciation of a principle of law,

and not a decision on a question of fact, does not, theoretically, make any alteration in the law; but, if the words of the learned judge should lead to a recognition that our law is not at variance with that of nearly the whole of Europe on this not unimportant point of International Law, they are worthy of being printed in characters of gold.

But though it is advisable that on all questions of comity this country should be in harmony with other civilised countries, it is quite conceivable that, in some cases, their rules might cause such inconvenience and injustice to our own citizens that it would be necessary in self-defence to adopt a different rule. It is this view which seems to have influenced the American Courts in their decisions on the contracts of foreigners. The arguments of their judges, and of all writers who follow in their footsteps, against what I have called the Continental theory, may be roughly classed under two heads - (1) Inconvenience; (2) Injustice.

As regards the first head, I have already said that it seems to me just as easy to find out whether a man is sui juris by the law of his domicile as it is to find out his age. In all cases of contracts with minors, whether they be Englishmen or foreigners, there must be some difficulty and some risk. Persons do not have their ages stamped upon their faces, and an Englishman of twenty may look just as old as a Prussian of twenty-four, and be just as much of a man to the unsuspecting tradesman. The fact is, that in executing contracts neither rule would cause any inconvenience to persons who take proper precautions, while in contracts for the immediate sale of goods, and such like, the Englishman must depend to a great extent upon the honesty of the foreigner.

The argument of injustice is equally irrational. It is said that it is manifestly unjust that a Prussian of twentyfour should decoy a guileless Englishman into a contract, and then repudiate it on the plea of infancy. In answer to

this, I can only repeat what I have said before. What is there to prevent the Englishman saying to the Prussian: "Have you power to contract by the law of Prussia, for if you have not I will not have anything to do with you?" The Prussian may tell him a lie, but then there comes in the element of fraud, which involves rules of procedure. Again, it is said that anybody who enters into a contract in a foreign country must be taken to know the laws of that country. That is quite true, but it does not assist the supporters of the American theory. Supposing that a foreigner may be taken to know the law of this country, spread as it is over some ten thousand volumes, one of the rules which he will expect to find there is, that our laws either do or do not apply to persons domiciled in foreign lands. Knowing that we claim to be a highly civilised nation, and to have a great heritage of legal names and legal institutions, he would probably assume that they do not, but in any case his knowledge as to whether a particular contract would bind him, must depend upon the existence of some rule of law or practice on this point. A rule that the capacity to contract must be decided by the law of domicile, is just as much a law as any other law.

I have said that any country may protect itself against any supposed inconvenience or injustice by laying down an express rule, either varying or rejecting the general doctrine, and it has been pointed out that the provision of the Prussian code might well be adopted by other countries, and is in fact equivalent to the somewhat brutal enunciation of the Court of Louisiana in Saul v. His Creditors. But it seems to have been forgotten, that Prussian majority being at the late age of twenty-five, the provision of that code can only affect citizens of countries whose majority is fixed at even a later age, and that therefore its effect must be very limited.

But on the whole it seems to me that justice is decidedly on the side of the domicile theory. Take a strong instance,