Wed. Feb. 12

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Wed. Feb. 12
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pleading and proving foreign law
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• FRCP 44.1
• A party who intends to raise an issue concerning
  the law of a foreign country shall give notice by
  pleadings or other reasonable written notice. The
  court, in determining foreign law, may consider
  any relevant material or source, including
  testimony, whether or not submitted by a party or
  admissible under the Federal Rules of Evidence.
  The court's determination shall be treated as a
  ruling on a question of law.

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failure to plead foreign law
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- presume complaint is sufficient- court may
introduce foreign law sua sponte?- court must
introduce foreign law sua sponte?
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failure to offer evidence of foreign law
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- put burden on plaintiff and dismiss- put
burden on party best able to identify law- put
burden on court?- use presumption about what law
is like to allow case to proceed
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- Swift v. Tyson - federal and sister state
courts would come to own judgment about the
general common law in a state even in the face of
contrary decisions by the states courts
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presumptions- that common law applies in a
common law jurisdiction (that is, has not been
abrogated by statute)- that fundamental law
applies in a jurisdiction- that law of the
jurisdiction is like the forums
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- New York state courts assume that unsettled
sister state law is the same as New York law- P
sues D in federal court in New York on an
unsettled Pa cause of action
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- A nationwide class action is brought in NY
state court concerning a provision in the UCC-
New York courts have read the provision in one
way- 6 other states have read the same provision
a different way- what about the 43 other states?
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Walton v Arabian American Oil Co (2d Cir 1956)
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Louknitsky v. Louknitsky- California state
court determining spousal rights in marital
property of couple, now domiciled in Ca., while
they were in China- presumed Chinese law was the
same as Californias community property system
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• Borrowing statutes

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• Bridge Prods. Inc. v. Quantum Chem. Corp. (ND Ill
  1990)
• Property bought in VA
• Del choice of law provision in K
• Suit in Ill
• Should court use Del statute of limitations?
• Or should it use the statute of limitations that
  would be applied by an Illinois court?
• In this case it was VAs

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Party Autonomy
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• Choice-of-law clauses in contracts
• Choice of law that validates contracts
• Could be used even when no choice-of-law
  provisions exists
• Could be used to choose law other than the law in
  the choice-of-law clause

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• Rest 2d 188. Law Governing In Absence Of
  Effective Choice By The Parties
• (1) The rights and duties of the parties with
  respect to an issue in contract are determined by
  the local law of the state which, with respect to
  that issue, has the most significant relationship
  to the transaction and the parties under the
  principles stated in 6.
• (3) If the place of negotiating the contract and
  the place of performance are in the same state,
  the local law of this state will usually be
  applied, except as otherwise provided in
  189-199 and 203.

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• Rest. 2d 203. Usury
• The validity of a contract will be sustained
  against the charge of usury if it provides for a
  rate of interest that is permissible in a state
  to which the contract has a substantial
  relationship and is not greatly in excess of the
  rate permitted by the general usury law of the
  state of the otherwise applicable law under the
  rule of 188.

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- two NYers enter into a loan contract in
Illinois - interest is 19 , the maximum allowed
in Ill- the maximum in NY is 18- what if the
maximum in NY was 12?
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• Two NYers contract in NY to ship goods in NY
• Under NY law the receiving party is excused from
  paying until they are received
• Under Japanese law must pay unless actual breach
  is clear
• Can the parties say Japanese law apply with
  respect to the issue?

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• Rest 2d 187. Law Of The State Chosen By The
  Parties
• (1) The law of the state chosen by the parties to
  govern their contractual rights and duties will
  be applied if the particular issue is one which
  the parties could have resolved by an explicit
  provision in their agreement directed to that
  issue.

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• default rules v. mandatory rules

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We think it clear that the federal conflicts
rule will give effect to the parties intention
that English law is to apply to the
interpretation of the contract.
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• What if Japanese law considers the matter a
  default rule, but New York law considers a
  mandatory rule?

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• Whether the parties could have determined a
  particular issue by explicit agreement directed
  to that issue is a question to be determined by
  the local law of the state selected by
  application of the rule of 188. Usually,
  however, this will be a question that would be
  decided the same way by the relevant local law
  rules of all the potentially interested states.
  On such occasions, there is no need for the forum
  to determine the state of the applicable law.

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- a NY court is considering a contract entered
into in NY between a 17 year old NYer and another
NYer - under NY law the contract is voidable by
the 17 year old- will the court enforce a
provision stating that the contract is not
voidable by any party? - will the court enforce
a provision stating that PA law (which has no
protection for 17 year olds) applies?
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- a NY court is considering a contract entered
into in NY between a 17 year old NYer and a
Pennsylvanian - will the court enforce a
provision stating that PA law (which has no
protection for 17 year olds) applies?
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Seigelman v. Cunard White Star Line (2d Cir 1955)
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• 187(3) In the absence of a contrary indication of
  intention, the reference is to the local law of
  the state of the chosen law.

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• 187(2) The law of the state chosen by the parties
  to govern their contractual rights and duties
  will be applied, even if the particular issue is
  one which the parties could not have resolved by
  an explicit provision in their agreement directed
  to that issue, unless either(a) the chosen state
  has no substantial relationship to the parties or
  the transaction and there is no other reasonable
  basis for the parties' choice, or

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• (b) application of the law of the chosen state
  would be contrary to a fundamental policy of a
  state which has a materially greater interest
  than the chosen state in the determination of the
  particular issue and which, under the rule of 
  188, would be the state of the applicable law in
  the absence of an effective choice of law by the
  parties.

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• Mass Insurer contracts with NH insured
• K says law of Mass applies
• K entered into in NH
• insured misstates the distance of house from fire
  hydrant
• house burns down
• under law of Mass, no rights under K because of
  misstatement
• under law of NH, still has rights
• assume that most significant relationship is with
  NH law

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• P (Mass) and D (Maine) enter into a contract in
  Maine with performance in Maine
• The contract says that the law of Mass applies
• Under Mass law D has no capacity to contract,
  because she is a married woman
• Under Maine law, she has such a capacity

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• On occasion, the parties may choose a law that
  would declare the contract invalid. In such
  situations, the chosen law will not be applied by
  reason of the parties' choice. To do so would
  defeat the expectations of the parties which it
  is the purpose of the present rule to protect.
  The parties can be assumed to have intended that
  the provisions of the contract would be binding
  upon them. If the parties have chosen a law that
  would invalidate the contract, it can be assumed
  that they did so by mistake. If, however, the
  chosen law is that of the state of the otherwise
  applicable law under the rule of  188, this law
  will be applied even when it invalidates the
  contract. Such application will be by reason of
  the rule of  188, and not by reason of the fact
  that this was the law chosen by the parties.

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interest analysis
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- P (NY) is suing D (NY) concerning a car
accident in New York, under a law providing for
treble damages for accidents on highways- D,
appeals to a law limiting recovery to 10,000
when against police officers who were acting in
the course of his duty
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false conflicts
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- P (NY) sues D (NY) concerning a car accident in
NY- NY has law saying anyone who is grossly
negligent shall be liable for harm- NJ has law
saying anyone who is negligent shall be liable
for harm
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• Millikan v Pratt
• Mass D contracted with Maine Ps to guarantee Ds
  husbands payment
• Sent by her husband by mail from Mass to Maine
• Ds husband did not pay
• Ps demanded of D
• She refused
• Mass had law not allowing married women to
  contract as surety
• NH didnt