Private International Law 44B Am. Jur.

2d International Law 1 American Jurisprudence, Second Edition Database updated August 2012 International Law Romualdo P. Eclavea, J.D., Larissa J. Erkman, J.D., Edward K. Esping, J.D., and Tracy Bateman Farrell, J.D. I. In General A. Overview Topic Summary 1. Generally West's Key Number Digest West's Key Number Digest, International Law 1, 2 Correlation Table References

significance and therefore may be considered foreign relations law.[FN5] A jus cogens norm is a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted, and which can be modified only by a subsequent norm of general international law having the same character.[FN6] CUMULATIVE SUPPLEMENT Cases: The "subjects of international law" are those that, to varying extents, have legal status, personality, rights, and duties under international law and whose acts and relationships are the principal concerns of international law. Rest. 3rd, Restatement of the Foreign Relations Law of the United States, Part II, introductory note. Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir. 2010). The present state of customary international law is discerned from the works of jurists, writing professedly on public law, or by the general usage and practice of nations, or by judicial decisions recognizing and enforcing that law. In re Chiquita Brands Intern., Inc. Alien Tort Statute and Shareholder Derivative Litigation, 792 F. Supp. 2d 1301 (S.D. Fla. 2011). Among rights universally proclaimed by all nations is right to be free of physical torture; indeed, for purposes of civil liability, torturer has become like pirate and slave trader before him hostis humani generis, an enemy of all mankind. Al-Quraishi v. Nakhla, 728 F. Supp. 2d 702 (D. Md. 2010). [END OF SUPPLEMENT] [FN1] Restatement Third, Foreign Relations Law of the United States 101. [FN2] Flores v. Southern Peru Copper Corp., 414 F.3d 233 (2d Cir. 2003). [FN3] Sarei v. Rio Tinto, PLC., 456 F.3d 1069 (9th Cir. 2006); Doe v. Islamic Salvation Front (FIS), 993 F. Supp. 3 (D.D.C. 1998). [FN4] In re Agent Orange Product Liability Litigation, 373 F. Supp. 2d 7 (E.D. N.Y. 2005), as amended, (Mar. 28, 2005). [FN5] Restatement Third, Foreign Relations Law of the United

International law, or the law of nations, consists of rules and principles of general application dealing with the conduct of states and of international organizations and with their relations inter se, as well as with some of their relations with persons, whether natural or juridical.[FN1] The law of nations, which is also known as customary international law,[FN2] is formed by the general assent of civilized nations.[FN3] Observation: A practice that states initially follow as a matter of courtesy or habit may later transform into a rule of customary international law if states generally come to believe that compliance with that practice is a legal obligation.[FN4] International law, which in most other countries is referred to as "public international law," is often distinguished from private international law. Private international law has been defined as law directed to resolving controversies between private persons, natural as well as juridical, primarily in domestic litigation, arising out of situations having a significant relationship to more than one state. In some circumstances, issues of private international law may also implicate issues of public international law, and many matters of private international law have substantial international

States 101, Comment c. [FN6] Sarei v. Rio Tinto, PLC., 456 F.3d 1069 (9th Cir. 2006). - As to the binding effect of jus cogens norms, generally, see 7, 12. 2012 Thomson Reuters. 33-34B 2012 Thomson Reuters/RIA. No Claim to Orig. U.S. Govt. Works. All rights reserved. AMJUR INTERNLAW 1 Lex Domicilii 16 Am. Jur. 2d Conflict of Laws 53 American Jurisprudence, Second Edition Database updated August 2012 Conflict of Laws Sonja Larsen, J.D. and Karl Oakes, J.D. IV. Wills A. In General Topic Summary Correlation Table References

unless the two happen to be the same.[FN4] Therefore, a will not executed in conformity with the domiciliary law is inoperative in regard to personal property in a foreign country, although executed according to the laws of that country.[FN5] Conversely, a codicil executed in conformity with the law of the testator's domicil at the time of death is operative as to personal property located in a foreign country, although the testator may have been domiciled in such foreign country at the time he or she executed the codicil there, and it was not executed in conformity with the laws of such country.[FN6] On the other hand, the formal validity of a will of real property depends upon the law of the state or country where the property is situated, irrespective of the law of the domicil of the testator or of the place where the will is executed.[FN7] Thus, the fact that a holographic will may be legally sufficient in the domiciliary state does not render it sufficient to devise real property in another state where it does not comply with the law of the latter state.[FN8] However, a will the attestation of which, though insufficient under the law of the place of execution, is in full compliance with the law of a state in which real property of the decedent is located is effectual to pass title to such real property.[FN9] [FN1] 52. [FN2] In re Brace's Estate, 180 Cal. App. 2d 797, 4 Cal. Rptr. 683 (2d Dist. 1960); Duckwall v. Lease, 106 Ind. App. 664, 20 N.E.2d 204 (1939); Guaranty Trust Co. of N.Y. v. Stevens, 28 N.J. 243, 146 A.2d 97 (1958); In re Bulova's Will, 14 A.D.2d 249, 220 N.Y.S.2d 541 (1st Dep't 1961); In re Beaumont's Estate, 216 Pa. 350, 65 A. 799 (1907). [FN3] Matter of Estate of Zelikovitz, 923 P.2d 740 (Wyo. 1996). [FN4] Equitable Trust Co. v. Ward, 29 Del. Ch. 206, 48 A.2d 519 (1946); In re Beaumont's Estate, 216 Pa. 350, 65 A. 799 (1907). [FN5] Desebats v. Berquier, 1 Binn. 336, 1808 WL 1505 (Pa. 1808). [FN6] In re Brace's Estate, 180 Cal. App. 2d 797, 4 Cal. Rptr. 683 (2d Dist. 1960). [FN7] Robertson v. Pickrell, 109 U.S. 608, 3 S. Ct. 407, 27 L. Ed. 1049 (1883); Equitable Trust Co. v. Ward, 29 Del. Ch. 206, 48 A.2d 519 (1946); Peet v. Peet, 229 Ill. 341, 82 N.E. 376 (1907); Roach v. Jurchak, 182 Md. 646, 35 A.2d 817 (1944); In re Bulova's Will, 14

53. Formal validity West's Key Number Digest West's Key Number Digest, Wills 70

At common law and in the absence of a local statute to the contrary,[FN1] the validity of a will of personal property as to its form, the manner of its execution, and all other matters that relate to its legal existence as distinguished from its essential validity depends upon the law of the testator's domicil, irrespective of the law of the place where the will is executed of the place where the testator died or of any other law whatsoever.[FN2] Thus, the lex domicilii would be applied to determine the validity of execution of a second codicil signed in another state.[FN3] The testator's domicil in this context is the domicil at the time of death and not the domicil at the time of the making of the will

A.D.2d 249, 220 N.Y.S.2d 541 (1st Dep't 1961). [FN8] In re McDougal's Will, 49 N.J. Super. 485, 140 A.2d 249 (County Ct., P. Div. 1958), judgment aff'd, 55 N.J. Super. 36, 149 A.2d 801 (App. Div. 1959), judgment aff'd, 29 N.J. 586, 151 A.2d 540 (1959). [FN9] Trotter v. Van Pelt, 144 Fla. 517, 198 So. 215, 131 A.L.R. 1018 (1940). 2012 Thomson Reuters. 33-34B 2012 Thomson Reuters/RIA. No Claim to Orig. U.S. Govt. Works. All rights reserved. AMJUR CONFLICTLW 53

where the land is situated,[FN6] as does the question whether the language of a will creates an estate tail[FN7] or a fee simple.[FN8] Similarly, the application of the rule in Shelley's Case to a devise is controlled by the manner in which the rule is expounded in the state where the land lies.[FN9] Observation: A will devising lands in two or more states will be construed by the courts of each state as to the lands located therein, as if they had been devised by separate wills.[FN10] The lex rei sitae also determines whether or not real property acquired subsequent to the execution of a will passes under the will[FN11] and whether after-acquired real property passes under a general devise.[FN12] The question whether a provision for the wife made in the will is in lieu of dower or in addition to dower is determinable in the absence of indication of a contrary intention in the will by the law of the state where the devised property is situated,[FN13] as is the question whether a sale of devised land operates as an ademption.[FN14] On the other hand, when the sole issue is to ascertain the testator's intent from the language in the will, or the sense in which certain words or phrases are used, and not their legal effect, they will be construed according to the lex domicilii in the case of real as well as personal property.[FN15] In such cases, although there is some authority to the contrary,[FN16] the rule is that a will is to be construed according to the laws of the testator's domicil as to the disposition intended of property in another state unless it is clear from the instrument itself that the testator intended that the laws of the latter state should control.[FN17] Caution: Whatever the extent of the rule as to the interpretation of a foreign will, an interpretation cannot be accepted which brings about a result contrary to the law of the forum.[FN18] [FN1] Layman v. Hodnett, 205 Ark. 367, 168 S.W.2d 819 (1943); Patch v. Smith, 113 Colo. 186, 155 P.2d 765 (1945); In re Coleman's Estate, 98 N.W.2d 784 (N.D. 1959); Buresh v. First Nat. Bank, 10 Or. App. 463, 500 P.2d 1063 (1972). [FN2] Greenwood v. Page, 138 F.2d 921 (App. D.C. 1943); In re McLaughlin's Will, 128 Colo. 581, 265 P.2d 691 (1954); In re Del Drago's Estate, 287 N.Y. 61, 38 N.E.2d 131 (1941); Crossland v. Dunham, 135 Tex. 301, 140 S.W.2d 1095 (1940). [FN3] Veach v. Veach, 205 Ga. 185, 53 S.E.2d 98 (1949); Wrubel Realty Corp. v. Wrubel, 138 N.J. Eq. 466, 48 A.2d 793 (Ch. 1946); In

16 Am. Jur. 2d Conflict of Laws 71 American Jurisprudence, Second Edition Database updated August 2012 Conflict of Laws Sonja Larsen, J.D. and Karl Oakes, J.D. IV. Wills C. Construction and Effect of Will Topic Summary Correlation Table References

71. Will of real property West's Key Number Digest West's Key Number Digest, Wills 436(1) to 436(8)

As to wills of real property, the general rule is that the law of the state where the property is located governs the construction[FN1] or construction and effect[FN2] of such a will. This proposition applies insofar as it pertains to the effect[FN3] or operative effect[FN4] of the language of a devise of land. Thus, an interest in land and mineral royalties is controlled by the law of the situs.[FN5] In addition, the question of whether a vested or contingent remainder is created depends on the law of the place

re Haldeman's Estate, 208 Misc. 419, 143 N.Y.S.2d 396 (Sur. Ct. 1955); In re Dublin's Estate, 375 Pa. 599, 101 A.2d 731 (1954); In re Ray's Estate, 74 Wyo. 317, 287 P.2d 629 (1955). [FN4] Clarke v. Clarke, 178 U.S. 186, 20 S. Ct. 873, 44 L. Ed. 1028 (1900); Applegate v. Brown, 344 S.W.2d 13 (Mo. 1961); Zombro v. Moffett, 329 Mo. 137, 44 S.W.2d 149 (1931). [FN5] Matter of Estate of Allen, 237 Mont. 114, 772 P.2d 297 (1989). - Wyoming law governed the validity and effect of a will executed in California which pertained to a Wyoming mineral estate. Matter of Estate of Reed, 768 P.2d 566 (Wyo. 1989). [FN6] Veach v. Veach, 205 Ga. 185, 53 S.E.2d 98 (1949); Jacobs v. Whitney, 205 Mass. 477, 91 N.E. 1009 (1910). [FN7] Farrar v. Bingham, 93 F.2d 252 (App. D.C. 1937). [FN8] Beauchamp v. Beauchamp, 574 So. 2d 18 (Miss. 1990). [FN9] De Vaughn v. Hutchinson, 165 U.S. 566, 17 S. Ct. 461, 41 L. Ed. 827 (1897); Thompson v. Penn, 149 Ky. 158, 148 S.W. 33 (1912). [FN10] Trotter v. Van Pelt, 144 Fla. 517, 198 So. 215, 131 A.L.R. 1018 (1940); In re Good's Will, 304 N.Y. 110, 106 N.E.2d 36 (1952). [FN11] Frazier v. Boggs, 37 Fla. 307, 20 So. 245 (1896); Applegate v. Smith, 31 Mo. 166, 1860 WL 6207 (1860). [FN12] Wynne v. Wynne, 23 Miss. 251, 1852 WL 3129 (1852). [FN13] Jackman v. Herrick, 178 Iowa 1374, 161 N.W. 97 (1917); Jennings v. Jennings, 21 Ohio St. 56, 1871 WL 35 (1871). - As to what law governs dower and other rights of a surviving spouse, generally, see Am. Jur. 2d, Dower and Curtesy 9. [FN14] In re Dublin's Estate, 375 Pa. 599, 101 A.2d 731 (1954). [FN15] Wilcoxen v. U.S., 310 F. Supp. 1006 (D. Kan. 1969); Higinbotham v. Manchester, 113 Conn. 62, 154 A. 242, 79 A.L.R. 85 (1931); Martin v. Harris, 305 Ky. 235, 203 S.W.2d 78 (1947); Applegate v. Brown, 344 S.W.2d 13 (Mo. 1961). [FN16] Miller v. Brinton, 294 Ill. 177, 128 N.E. 370 (1920); Scofield v. Hadden, 206 Iowa 597, 220 N.W. 1 (1928).

[FN17] Greenwood v. Page, 138 F.2d 921 (App. D.C. 1943); Darrow v. Moore, 163 Miss. 705, 142 So. 447 (1932); Tunis v. Dole, 97 N.H. 420, 89 A.2d 760 (1952); In re Pratt's Estate, 1 Misc. 2d 428, 145 N.Y.S.2d 407 (Sur. Ct. 1955); In re Knickel's Will, 89 Ohio L. Abs. 135, 185 N.E.2d 93 (Prob. Ct. 1961). - As to stipulations as to governing laws, see 60. [FN18] Hanson v. Hoffman, 150 Kan. 121, 91 P.2d 31 (1939). 2012 Thomson Reuters. 33-34B 2012 Thomson Reuters/RIA. No Claim to Orig. U.S. Govt. Works. All rights reserved. AMJUR CONFLICTLW 71 Lex Fori 16 Am. Jur. 2d Conflict of Laws 3 American Jurisprudence, Second Edition Database updated August 2012 Conflict of Laws Sonja Larsen, J.D. and Karl Oakes, J.D. I. In General Topic Summary Correlation Table References

3. Basic conflicts rules for determining applicable law West's Key Number Digest West's Key Number Digest, Action Forms Am. Jur. Pleading and Practice Forms, Conflict of Laws 4 (Complaint, petition, or declarationAllegationTerms of common law of another stateVariance from common law of state of forum) Model Codes and Restatements 17

Restatement Second, Conflict of Laws 6(2) Under the "modern" or Restatement rule, the applicable law in a conflict of laws case is decided by determining which jurisdiction has the "most significant relationship" to a given issue.[FN1] A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice-of-law.[FN2] When there is no such directive, the applicable law is to be chosen by giving consideration to the following factors,[FN3] the importance of which are recognized in the Restatement Second, Conflict of Laws:[FN4] The needs of the interstate and international systems The relevant policies of the forum The relevant policies of other interested states and the relative interests of those states in the determination of the particular issue The protection of justified expectations The basic policies underlying the particular field of law Certainty, predictability, and uniformity of result (although it has been noted that the need for predictability and the justifiable expectations of the parties are of little relevance to tort actions which arise out of unplanned occurrences)[FN5] Ease in the determination and application of the law to be applied. The list is not exclusive, and the particular factors will vary in importance according to the type of case at issue.[FN6] The modern approach is the successor to the traditional "territorial" approach to choice-of-law problems, under which the lex locithe law of the place where the right was acquired or the liability was incurred which constitutes the claim or the cause of action[FN7]controls the substantive rights of the parties, that is, all matters going to the basis of the right itself[FN8] while the lex fori, or the law of the forum, controls procedural and remedial matters.[FN9] Some courts now apply a more complex choice-oflaw analysis, such as the "most significant relationship" test or some variant thereof, to substantive issues while continuing to

apply the law of the forum to procedural issues.[FN10] Generally, a court will assume that a case is to be governed by the laws of the forum unless it is expressly shown that a different law applies,[FN11] and in case of doubt as to whether the lex loci or the lex fori should govern, the court will naturally prefer the laws of its own state or country.[FN12] CUMULATIVE SUPPLEMENT Cases: In addressing choice-of-law questions, Texas courts initially determine whether there is a conflict between Texas law and the other potentially applicable law; where there is a conflict of laws, Texas follows the most significant relationship test of the Restatement (Second) of Conflict of Laws to determine the law applicable to a contract dispute. Restatement (Second) of Conflict of Laws 188. Bailey v. Shell Western E&P, Inc., 609 F.3d 710 (5th Cir. 2010). Under Pennsylvania's interest/contacts choice of law analysis, if there are relevant differences between the potentially applicable laws, then the court should examine the governmental policies underlying each law, and classify the conflict as a true, false, or an unprovided-for situation. Wolfe v. McNeil-PPC, Inc., 703 F. Supp. 2d 487 (E.D. Pa. 2010). A conflict exists in the laws of two states, requiring choice-of-law analysis, if the difference in laws will result in a difference in outcome; if the law of the jurisdictions in question is essentially the same on the disputed point, there is no need to apply a choiceof-law analysis. Universal Underwriters Ins. Co. v. LKQ Smart Parts, Inc., 2011 IL App (1st) 101723, 963 N.E.2d 930 (Ill. App. Ct. 1st Dist. 2011). The controlling time for determining a plaintiff's residency in context of a choice-of-law analysis is the date the cause of action arose. Waterfield v. Meredith Corp., 20 A.3d 865 (N.H. 2011). [END OF SUPPLEMENT] [FN1] Estate of Miller ex rel. Miller v. Thrifty Rent-A-Car System, Inc., 609 F. Supp. 2d 1235 (M.D. Fla. 2009); Siegel v. Shell Oil Co., 256 F.R.D. 580 (N.D. Ill. 2008); In re Cessna 208 Series Aircraft Products Liability Litigation, 591 F. Supp. 2d 1161 (D. Kan. 2008), judgment entered, 2009 WL 859505 (D. Kan. 2009); Vibo Corp., Inc. v. Conway, 594 F. Supp. 2d 758 (W.D. Ky. 2009); Bispo v. GSW, Inc., 586 F. Supp. 2d 1226 (D. Or. 2008); In re Uni-Marts, LLC, 405 B.R.

113 (Bankr. D. Del. 2009); In re Nguyen-Gassaway, 408 B.R. 869 (Bankr. S.D. Tex. 2009); In re American Intern. Group, Inc., 965 A.2d 763 (Del. Ch. 2009); Burlington Northern and Santa Fe Ry. Co. v. ABC-NACO, 389 Ill. App. 3d 691, 329 Ill. Dec. 238, 906 N.E.2d 83 (1st Dist. 2009); Phillips v. General Motors Corp., 2000 MT 55, 298 Mont. 438, 995 P.2d 1002 (2000); Erickson v. U-Haul Intern., 278 Neb. 18, 767 N.W.2d 765 (2009); P.V. ex rel. T.V. v. Camp Jaycee, 197 N.J. 132, 962 A.2d 453 (2008); Highland Crusader Offshore Partners, L.P. v. Motient Corp., 281 S.W.3d 237 (Tex. App. Dallas 2009), reh'g overruled, (Apr. 30, 2009) and petition for review filed, (June 15, 2009); Singh v. Edwards Lifesciences Corp., 210 P.3d 337 (Wash. Ct. App. Div. 1 2009). [FN2] Brazones v. Prothe, 489 N.W.2d 900 (S.D. 1992). [FN3] Reicher v. Berkshire Life Ins. Co. of America, 360 F.3d 1 (1st Cir. 2004); Schwarz v. National Van Lines, Inc., 375 F. Supp. 2d 690 (N.D. Ill. 2005); Marshall v. Fenstermacher, 388 F. Supp. 2d 536 (E.D. Pa. 2005); Deep Marine Technology, Inc. v. Conmaco/Rector, L.P., 515 F. Supp. 2d 760 (S.D. Tex. 2007); Grover v. Isom, 137 Idaho 770, 53 P.3d 821 (2002). [FN4] Restatement Second, Conflict of Laws 6(2). [FN5] In re Air Crash Disaster at Boston, Massachusetts on July 31973, 399 F. Supp. 1106 (D. Mass. 1975). - As to choice-of-law in tort actions, generally, see 107 to 133. [FN6] Cribb v. Augustyn, 696 A.2d 285 (R.I. 1997). - An important consideration in determining whether the law of another jurisdiction should be applied is whether such an application is reasonably to be expected by the litigants. Roberts v. Home Ins. Indem. Co., 48 Cal. App. 3d 313, 121 Cal. Rptr. 862 (1st Dist. 1975). [FN7] Gray v. Blight, 112 F.2d 696 (C.C.A. 10th Cir. 1940). [FN8] Central Vermont R. Co. v. White, 238 U.S. 507, 35 S. Ct. 865, 59 L. Ed. 1433 (1915); Hatfill v. New York Times Co., 459 F. Supp. 2d 462 (E.D. Va. 2006) (applying Virginia law); Middleton v. Caterpillar Indus., Inc., 979 So. 2d 53 (Ala. 2007); Siegel v. Novak, 920 So. 2d 89 (Fla. Dist. Ct. App. 4th Dist. 2006); Naughton v. Bankier, 114 Md. App. 641, 691 A.2d 712 (1997); Yount v. National Bank of Jackson, 327 Mich. 342, 42 N.W.2d 110, 17 A.L.R.2d 685 (1950); Anderson v. State Farm Mut. Auto. Ins. Co., 222 Minn. 428,

24 N.W.2d 836 (1946); Caldwell Freight Lines, Inc. v. Lumbermens Mut. Cas. Co., Inc., 947 So. 2d 948 (Miss. 2007); Charnock v. Taylor, 223 N.C. 360, 26 S.E.2d 91148 A.L.R. 1126 (1943); State of Cal. v. Copus, 158 Tex. 196, 309 S.W.2d 227, 67 A.L.R.2d 758 (1958); Buhler v. Maddison, 109 Utah 267, 176 P.2d 118, 168 A.L.R. 177 (1947); State of Maryland, for Use of Joynes v. Coard, 175 Va. 571, 9 S.E.2d 454 (1940); McKinney v. Fairchild Intern., Inc., 199 W. Va. 718, 487 S.E.2d 913 (1997). - Under New York's choice of law analysis, Connecticut's products liability statute of limitations, under which no action may be brought later than 10 years after the date that the defendant parted with possession or control of the product, was part of the substantive law of Connecticut, and thus, the Connecticut statute of repose applied to bar a New York employee's products liability action in New York federal court against a printing press manufacturer for injuries sustained while operating a printing press in Connecticut. Tanges v. Heidelberg North America, Inc., 93 N.Y.2d 48, 687 N.Y.S.2d 604, 710 N.E.2d 250 (1999). [FN9] Chin v. Chrysler LLC, 538 F.3d 272 (3d Cir. 2008); Hatfill v. New York Times Co., 459 F. Supp. 2d 462 (E.D. Va. 2006); Middleton v. Caterpillar Indus., Inc., 979 So. 2d 53 (Ala. 2007); Shisler v. Sanfer Sports Cars, Inc., 167 Cal. App. 4th 1, 83 Cal. Rptr. 3d 771 (6th Dist. 2008); Chaplake Holdings, LTD. v. Chrysler Corp., 766 A.2d 1 (Del. 2001); Huang v. D'Albora, 644 A.2d 1 (D.C. 1994); Siegel v. Novak, 920 So. 2d 89 (Fla. Dist. Ct. App. 4th Dist. 2006); Prudence Life Ins. Co. v. Morgan, 138 Ind. App. 287, 213 N.E.2d 900 (1966); Naughton v. Bankier, 114 Md. App. 641, 691 A.2d 712 (1997); Caldwell Freight Lines, Inc. v. Lumbermens Mut. Cas. Co., Inc., 947 So. 2d 948 (Miss. 2007); Farmers Exchange Bank v. Metro Contracting Services, Inc., 107 S.W.3d 381 (Mo. Ct. App. W.D. 2003); Kirwan v. Chicago Title Ins. Co., 261 Neb. 609, 624 N.W.2d 644 (2001); King v. Burlington Northern Santa Fe Ry. Co., 16 Neb. App. 544, 746 N.W.2d 383 (2008), rev'd on other grounds, 277 Neb. 203, 762 N.W.2d 24 (2009); Jones v. R.S. Jones and Associates, Inc., 246 Va. 3, 431 S.E.2d 33 (1993). - In determining whether a foreign state's statute is one of substance or procedure, New York is not bound by, and principles of comity do not prompt Court of Appeals to adopt, the choice of law classification selected by foreign state's highest court. Tanges v. Heidelberg North America, Inc., 93 N.Y.2d 48, 687 N.Y.S.2d 604, 710 N.E.2d 250 (1999). [FN10] Glover v. Merck & Co., Inc., 345 F. Supp. 2d 994 (D. Minn. 2004); Christian v. Birch, 763 N.W.2d 50 (Minn. Ct. App. 2009),

review granted, (May 27, 2009); Ameristar Jet Charter, Inc. v. Dodson Intern. Parts, Inc., 155 S.W.3d 50 (Mo. 2005); White v. Crown Equip. Corp., 160 Ohio App. 3d 503, 2005-Ohio-1785, 827 N.E.2d 859 (3d Dist. Auglaize County 2005). [FN11] The Scotland, 105 U.S. 24, 26 L. Ed. 1001, 1881 WL 19859 (1881); Smith v. New York Life Ins. Co., 208 F. Supp. 240 (S.D. Iowa 1962); Davis v. Standard Acc. Ins. Co., 35 Ariz. 392, 278 P. 384 (1929). - Generally speaking, the forum will apply its own rule of decision unless a party litigant timely invokes the law of a foreign state. Beech Aircraft Corp. v. Superior Court, 61 Cal. App. 3d 501, 132 Cal. Rptr. 541 (2d Dist. 1976). [FN12] Smith v. New York Life Ins. Co., 208 F. Supp. 240 (S.D. Iowa 1962); Gatenby v. Altoona Aviation Corp., 259 F. Supp. 573 (W.D. Pa. 1966); Gray v. Amoco Production Co., 1 Kan. App. 2d 338, 564 P.2d 579 (1977), aff'd in part, remanded in part on other grounds, 223 Kan. 441, 573 P.2d 1080 (1978); Saul v. His Creditors, 5 Mart. (n.s.) 569, 1827 WL 1936 (La. 1827); Universal Credit Co. v. Marks, 164 Md. 130, 163 A. 810 (1933). - As to proof of foreign laws, especially the doctrines as to presumptions and judicial notice, see Am. Jur. 2d, Evidence 271, 272, 1339, 1340. 2012 Thomson Reuters. 33-34B 2012 Thomson Reuters/RIA. No Claim to Orig. U.S. Govt. Works. All rights reserved. AMJUR CONFLICTLW 3 16 Am. Jur. 2d Conflict of Laws 110 American Jurisprudence, Second Edition Database updated August 2012 Conflict of Laws Sonja Larsen, J.D. and Karl Oakes, J.D. VI. Torts A. In General Topic Summary Correlation Table References

West's Key Number Digest West's Key Number Digest, Action 17 West's Key Number Digest, Negligence 204 West's Key Number Digest, Torts 103 A.L.R. Library Modern status of choice of law in application of automobile guest statutes, 63 A.L.R.4th 167 Modern status of rule that substantive rights of parties to a tort action are governed by the law of the place of the wrong, 29 A.L.R.3d 603 (sec. 6(f) superseded in part by Modern status of choice of law in application of automobile guest statutes, 63 A.L.R.4th 167) Although the substantive rights of the parties are determined by the law of the place of the injury under the traditional rule of lex loci delicti, the law of the forum, or lex fori, applies to procedural matters.[FN1] There is also a public policy exception to the lex loci delicti rule[FN2] under which the law of the forum will be applied whenever the law of the place of the wrong or injury is contrary to a strong public policy of the forum state.[FN3] Subject to constitutional limitations, it has been held that the court will not entertain a transitory tort action if the action would violate the public policy of the forum.[FN4] Thus, a state which considers certain kinds of actions, as, for example, an action for breach of promise to marry[FN5] or for alienation of affection,[FN6] to be against its public policy may refuse to take jurisdiction of such an action arising in another jurisdiction where a right to recover is recognized.[FN7] Other authority states that the court will not adhere to the doctrine of lex loci delicti under which the substantive rights and obligations arising out of a tort controversy are determined by the law of the place of injury[FN8] where to do so would violate the strong[FN9] or important[FN10] public policy of the forum. The general rule that the statute of another state is not contrary to public policy because the forum has no statute on the subject, or because the statute of the forum and the statute of the other state differ,[FN11] is also applicable to torts. Thus, the fact that the law of the place where the transitory right of action arose differs from the law of the forum is not sufficient ground for refusing to enforce the action.[FN12] Some early cases took the position that

110. Traditional rule; lex loci delicti Exceptions to rule

where a transitory tort action depends upon a statute, jurisdiction would be refused unless there was a statute in the forum "similar" to that of the place where the cause of action arose.[FN13] Under this rule, it was sufficient if the statutes were substantially alike or were of the same import or character;[FN14] it was not essential that the two statutes be precisely the same.[FN15] However, cases have criticized the rule of similarity[FN16] and may be regarded as authority against the necessity of a similar statute in the forum.[FN17] Still, other cases allude to the similarity of the statutes as merely showing that the enforcement of the action in the forum is not against its public policy.[FN18] The fact that the contributory negligence rule in effect in the foreign jurisdiction differs in some respects from that in effect in the forum[FN19] or that the contributory negligence rule exists in one jurisdiction while the comparative negligence rule exists in the other[FN20] does not render the law of the state where the injury occurred so repugnant to the public policy of the forum that the forum will refuse to entertain an action on the foreign tort. However, it has been held that where no right of action existed in the forum for damages for liability without fault as provided in a statute of the place of the wrong under certain circumstances, such statute was opposed to the public policy of the forum and would not be enforced.[FN21] The public policy exception to the rule of lex loci delicti is limited and generally not triggered because of limitations on damages or higher burdens of proof under foreign law.[FN22] [FN1] 134. - As to the application of the law of the forum to resolve substantive issues, see 117. [FN2] Schmidt v. Driscoll Hotel, Inc., 249 Minn. 376, 82 N.W.2d 365 (1957). - As to the effect of the public policy of the forum, generally, see 18, 19. [FN3] Erie Ins. Exchange v. Heffernan, 399 Md. 598, 925 A.2d 636 (2007); Schmidt v. Driscoll Hotel, Inc., 249 Minn. 376, 82 N.W.2d 365 (1957). - 14 to 17. [FN4] Texas & P. Ry. Co. v. Humble, 181 U.S. 57, 21 S. Ct. 526, 45 L. Ed. 747 (1901); Sunbeam Corp. v. Masters of Miami, Inc., 225 F.2d 191 (5th Cir. 1955); Grant v. McAuliffe, 41 Cal. 2d 859, 264 P.2d 944, 42 A.L.R.2d 1162 (1953); Mertz v. Mertz, 271 N.Y. 466, 3

N.E.2d 597, 108 A.L.R. 1120 (1936); Ingle v. Cassady, 208 N.C. 497, 181 S.E. 562 (1935); Nelson's Adm'r v. Chesapeake & O.R. Co., 88 Va. 971, 14 S.E. 838 (1892); Dallas v. Whitney, 118 W. Va. 106, 188 S.E. 766 (1936). - Restatement Second, Conflict of Laws 90 (The Restatement provides that no action will be entertained on a foreign cause of action the enforcement of which is contrary to the strong public policy of the forum). - As to whether the court has discretionary power to refuse to entertain an action for a nonstatutory tort occurring in another state or country, a question primarily concerning the applicability of the doctrine of forum non conveniens, see Am. Jur. 2d, Courts 115 to 127. [FN5] Am. Jur. 2d, Breach of Marriage Promise 15. [FN6] Am. Jur. 2d, Husband and Wife 236. [FN7] Sunbeam Corp. v. Masters of Miami, Inc., 225 F.2d 191 (5th Cir. 1955); Gaines v. Poindexter, 155 F. Supp. 638 (W.D. La. 1957); Thome v. Macken, 58 Cal. App. 2d 76, 136 P.2d 116 (3d Dist. 1943); Hudson v. Von Hamm, 85 Cal. App. 323, 259 P. 374 (1st Dist. 1927) (Hawaiian statute). - However, a federal court, applying Louisiana law, held that notwithstanding the fact that Louisiana does not permit actions for intentional interference with or procurement of the breach of contractual relations, a rule based on the state's policy to protect the job mobility of the labor force, an action by plaintiff, a Louisiana corporation, claiming to have an exclusive agency agreement with defendant, a Michigan insurance company authorized to do business in Louisiana, for tortious interference with plaintiff's subagency contracts with licensed insurance agents in some 18 states, would lie; the Louisiana rule which sprang from the highly personalized relationship of master and servant should not defeat a claim for tortious disruption of a modern, more complex commercial arrangement. Brinkley & West, Inc. v. Foremost Ins. Co., 499 F.2d 928 (5th Cir. 1974). [FN8] 108. [FN9] Lewis v. Waletzky, 576 F. Supp. 2d 732 (D. Md. 2008) (clear, strong, and important); Erie Ins. Exchange v. Heffernan, 399 Md. 598, 925 A.2d 636 (2007); Boone v. Boone, 345 S.C. 8, 546 S.E.2d 191 (2001). -

[FN10] Norton v. Michonski, 368 F. Supp. 2d 175 (D. Conn. 2005); Lewis v. Waletzky, 576 F. Supp. 2d 732 (D. Md. 2008) (clear, strong, and important). [FN11] 19. [FN12] Kilian v. Louisville & N. R. Co., 374 F.2d 61 (7th Cir. 1967); Dym v. Gordon, 16 N.Y.2d 120, 262 N.Y.S.2d 463, 209 N.E.2d 792 (1965) (overruled in part on other grounds by, Tooker v. Lopez, 24 N.Y.2d 569, 301 N.Y.S.2d 519, 249 N.E.2d 394 (1969)); Coster v. Coster, 289 N.Y. 438, 46 N.E.2d 509, 146 A.L.R. 702 (1943). - As to the enforceability of a foreign, wrongful death statute which differs from that of the forum, see Am. Jur. 2d, Death 199 to 203, 307. [FN13] Texas & P. Ry. Co. v. Cox, 145 U.S. 593, 12 S. Ct. 905, 36 L. Ed. 829 (1892); Victor v. Sperry, 163 Cal. App. 2d 518, 329 P.2d 728 (4th Dist. 1958); Hudson v. Von Hamm, 85 Cal. App. 323, 259 P. 374 (1st Dist. 1927); Burg v. Knox, 54 S.W.2d 797 (Mo. Ct. App. 1932), transferred to Mo. S. Ct., 334 Mo. 329, 67 S.W.2d 96 (1933). [FN14] Wooden v. Western N.Y. & P.R. Co., 126 N.Y. 10, 26 N.E. 1050 (1891); Nelson's Adm'r v. Chesapeake & O.R. Co., 88 Va. 9714 S.E. 838 (1892). [FN15] Floyd v. Vicksburg Cooperage Co., 156 Miss. 567, 126 So. 395 (1930); Wooden v. Western N.Y. & P.R. Co., 126 N.Y. 10, 26 N.E. 1050 (1891); Nelson's Adm'r v. Chesapeake & O.R. Co., 88 Va. 971, 14 S.E. 838 (1892). [FN16] Loucks v. Standard Oil Co. of New York, 224 N.Y. 99, 120 N.E. 198 (1918) (holding that while similarity of legislation shows beyond question that the foreign statute does not offend local policy, its absence does not prove the contrary). [FN17] Hanlon v. Frederick Leyland & Co., 223 Mass. 438, 111 N.E. 907 (1916); Kertson v. Johnson, 185 Minn. 591, 242 N.W. 329, 85 A.L.R. 1 (1932); Gregonis v. Philadelphia & Reading Coal & Iron Co., 235 N.Y. 152, 139 N.E. 223, 32 A.L.R. 1 (1923) (overruled in part on other grounds by, Silver v. Great Am. Ins. Co., 29 N.Y.2d 356, 328 N.Y.S.2d 398, 278 N.E.2d 619 (1972)); Brown v. Perry, 104 Vt. 66, 156 A. 910, 77 A.L.R. 1294 (1931) (overruled on other grounds by, Amiot v. Ames, 166 Vt. 288, 693 A.2d 675 (1997)). [FN18] Slater v. Mexican Nat. R. Co., 194 U.S. 120, 24 S. Ct. 581, 48

L. Ed. 900 (1904); Knight v. West Jersey R. Co., 108 Pa. 250, 1885 WL 11155 (1885); Nelson's Adm'r v. Chesapeake & O.R. Co., 88 Va. 971, 14 S.E. 838 (1892). [FN19] Caine v. St. Louis & S.F.R. Co., 209 Ala. 181, 95 So. 876, 32 A.L.R. 793 (1923); Ohio Southern Exp. Co. v. Beeler, 110 Ga. App. 867, 140 S.E.2d 235 (1965). [FN20] Flaiz v. Moore, 359 S.W.2d 872 (Tex. 1962). [FN21] Victor v. Sperry, 163 Cal. App. 2d 518, 329 P.2d 728 (4th Dist. 1958) (Mexican statute imposing liability without fault for damages caused by persons using dangerous mechanisms or instruments and construed as including automobiles). [FN22] Raskin v. Allison, 30 Kan. App. 2d 1240, 57 P.3d 30 (2002). 2012 Thomson Reuters. 33-34B 2012 Thomson Reuters/RIA. No Claim to Orig. U.S. Govt. Works. All rights reserved. AMJUR CONFLICTLW 110 16 Am. Jur. 2d Conflict of Laws 117 American Jurisprudence, Second Edition Database updated August 2012 Conflict of Laws Sonja Larsen, J.D. and Karl Oakes, J.D. VI. Torts A. In General Topic Summary Correlation Table References

117. Other approaches; hybrid rulesApplication of lex fori West's Key Number Digest West's Key Number Digest, Action 17 West's Key Number Digest, Negligence 204 West's Key Number Digest, Torts 103

The doctrine of lex fori is applied so as to make the law of the forum state applicable to substantive issues primarily in Kentucky[FN1] and Michigan.[FN2] Under Michigan choice-of-law principles, Michigan law will be applied unless a rational reason to do otherwise exists. In determining whether such a reason exists, a two-step analysis is employed in which the court first determines if any foreign state has an interest in having its law applied; if no state has such an interest, the presumption that Michigan law will apply cannot be overcome but if a foreign state does have an interest in having its law applied, the court must then determine if Michigan's interests mandate that Michigan law be applied despite the foreign interests.[FN3]

Topic Summary

Correlation Table

References

110. Traditional rule; lex loci delicti Exceptions to rule West's Key Number Digest West's Key Number Digest, Action 17 West's Key Number Digest, Negligence 204 West's Key Number Digest, Torts 103 A.L.R. Library Modern status of choice of law in application of automobile guest statutes, 63 A.L.R.4th 167 Modern status of rule that substantive rights of parties to a tort action are governed by the law of the place of the wrong, 29 A.L.R.3d 603 (sec. 6(f) superseded in part by Modern status of choice of law in application of automobile guest statutes, 63 A.L.R.4th 167) Although the substantive rights of the parties are determined by the law of the place of the injury under the traditional rule of lex loci delicti, the law of the forum, or lex fori, applies to procedural matters.[FN1] There is also a public policy exception to the lex loci delicti rule[FN2] under which the law of the forum will be applied whenever the law of the place of the wrong or injury is contrary to a strong public policy of the forum state.[FN3] Subject to constitutional limitations, it has been held that the court will not entertain a transitory tort action if the action would violate the public policy of the forum.[FN4] Thus, a state which considers certain kinds of actions, as, for example, an action for breach of promise to marry[FN5] or for alienation of affection,[FN6] to be against its public policy may refuse to take jurisdiction of such an action arising in another jurisdiction where a right to recover is recognized.[FN7] Other authority states that the court will not adhere to the doctrine of lex loci delicti under which the substantive rights and obligations arising out of a tort controversy are determined by the law of the place of injury[FN8] where to do so would violate the strong[FN9] or important[FN10] public policy of the forum. The general rule that the statute of another state is not contrary to public policy because the forum has no statute on the subject, or

[FN1] Foster v. Leggett, 484 S.W.2d 827 (Ky. 1972) (stating that the law of Kentucky will be applied where the state has significant, even if not the most significant, contact with the case); Arnett v. Thompson, 433 S.W.2d 109 (Ky. 1968). - As to the application of the law of the forum when the law of the place of the wrong is contrary to public policy of the forum state, see 110. - As to the application of the law of the forum to procedural issues, see 134. [FN2] Olmstead v. Anderson, 428 Mich. 1, 400 N.W.2d 292 (1987). [FN3] Sutherland v. Kennington Truck Service, Ltd., 454 Mich. 274, 562 N.W.2d 466 (1997). 2012 Thomson Reuters. 33-34B 2012 Thomson Reuters/RIA. No Claim to Orig. U.S. Govt. Works. All rights reserved. AMJUR CONFLICTLW 117 16 Am. Jur. 2d Conflict of Laws 110 American Jurisprudence, Second Edition Database updated August 2012 Conflict of Laws Sonja Larsen, J.D. and Karl Oakes, J.D. VI. Torts A. In General

because the statute of the forum and the statute of the other state differ,[FN11] is also applicable to torts. Thus, the fact that the law of the place where the transitory right of action arose differs from the law of the forum is not sufficient ground for refusing to enforce the action.[FN12] Some early cases took the position that where a transitory tort action depends upon a statute, jurisdiction would be refused unless there was a statute in the forum "similar" to that of the place where the cause of action arose.[FN13] Under this rule, it was sufficient if the statutes were substantially alike or were of the same import or character;[FN14] it was not essential that the two statutes be precisely the same.[FN15] However, cases have criticized the rule of similarity[FN16] and may be regarded as authority against the necessity of a similar statute in the forum.[FN17] Still, other cases allude to the similarity of the statutes as merely showing that the enforcement of the action in the forum is not against its public policy.[FN18] The fact that the contributory negligence rule in effect in the foreign jurisdiction differs in some respects from that in effect in the forum[FN19] or that the contributory negligence rule exists in one jurisdiction while the comparative negligence rule exists in the other[FN20] does not render the law of the state where the injury occurred so repugnant to the public policy of the forum that the forum will refuse to entertain an action on the foreign tort. However, it has been held that where no right of action existed in the forum for damages for liability without fault as provided in a statute of the place of the wrong under certain circumstances, such statute was opposed to the public policy of the forum and would not be enforced.[FN21] The public policy exception to the rule of lex loci delicti is limited and generally not triggered because of limitations on damages or higher burdens of proof under foreign law.[FN22] [FN1] 134. - As to the application of the law of the forum to resolve substantive issues, see 117. [FN2] Schmidt v. Driscoll Hotel, Inc., 249 Minn. 376, 82 N.W.2d 365 (1957). - As to the effect of the public policy of the forum, generally, see 18, 19. [FN3] Erie Ins. Exchange v. Heffernan, 399 Md. 598, 925 A.2d 636 (2007); Schmidt v. Driscoll Hotel, Inc., 249 Minn. 376, 82 N.W.2d 365 (1957). - 14 to 17.

[FN4] Texas & P. Ry. Co. v. Humble, 181 U.S. 57, 21 S. Ct. 526, 45 L. Ed. 747 (1901); Sunbeam Corp. v. Masters of Miami, Inc., 225 F.2d 191 (5th Cir. 1955); Grant v. McAuliffe, 41 Cal. 2d 859, 264 P.2d 944, 42 A.L.R.2d 1162 (1953); Mertz v. Mertz, 271 N.Y. 466, 3 N.E.2d 597, 108 A.L.R. 1120 (1936); Ingle v. Cassady, 208 N.C. 497, 181 S.E. 562 (1935); Nelson's Adm'r v. Chesapeake & O.R. Co., 88 Va. 971, 14 S.E. 838 (1892); Dallas v. Whitney, 118 W. Va. 106, 188 S.E. 766 (1936). - Restatement Second, Conflict of Laws 90 (The Restatement provides that no action will be entertained on a foreign cause of action the enforcement of which is contrary to the strong public policy of the forum). - As to whether the court has discretionary power to refuse to entertain an action for a nonstatutory tort occurring in another state or country, a question primarily concerning the applicability of the doctrine of forum non conveniens, see Am. Jur. 2d, Courts 115 to 127. [FN5] Am. Jur. 2d, Breach of Marriage Promise 15. [FN6] Am. Jur. 2d, Husband and Wife 236. [FN7] Sunbeam Corp. v. Masters of Miami, Inc., 225 F.2d 191 (5th Cir. 1955); Gaines v. Poindexter, 155 F. Supp. 638 (W.D. La. 1957); Thome v. Macken, 58 Cal. App. 2d 76, 136 P.2d 116 (3d Dist. 1943); Hudson v. Von Hamm, 85 Cal. App. 323, 259 P. 374 (1st Dist. 1927) (Hawaiian statute). - However, a federal court, applying Louisiana law, held that notwithstanding the fact that Louisiana does not permit actions for intentional interference with or procurement of the breach of contractual relations, a rule based on the state's policy to protect the job mobility of the labor force, an action by plaintiff, a Louisiana corporation, claiming to have an exclusive agency agreement with defendant, a Michigan insurance company authorized to do business in Louisiana, for tortious interference with plaintiff's subagency contracts with licensed insurance agents in some 18 states, would lie; the Louisiana rule which sprang from the highly personalized relationship of master and servant should not defeat a claim for tortious disruption of a modern, more complex commercial arrangement. Brinkley & West, Inc. v. Foremost Ins. Co., 499 F.2d 928 (5th Cir. 1974). [FN8] 108. -

[FN9] Lewis v. Waletzky, 576 F. Supp. 2d 732 (D. Md. 2008) (clear, strong, and important); Erie Ins. Exchange v. Heffernan, 399 Md. 598, 925 A.2d 636 (2007); Boone v. Boone, 345 S.C. 8, 546 S.E.2d 191 (2001). [FN10] Norton v. Michonski, 368 F. Supp. 2d 175 (D. Conn. 2005); Lewis v. Waletzky, 576 F. Supp. 2d 732 (D. Md. 2008) (clear, strong, and important). [FN11] 19. [FN12] Kilian v. Louisville & N. R. Co., 374 F.2d 61 (7th Cir. 1967); Dym v. Gordon, 16 N.Y.2d 120, 262 N.Y.S.2d 463, 209 N.E.2d 792 (1965) (overruled in part on other grounds by, Tooker v. Lopez, 24 N.Y.2d 569, 301 N.Y.S.2d 519, 249 N.E.2d 394 (1969)); Coster v. Coster, 289 N.Y. 438, 46 N.E.2d 509, 146 A.L.R. 702 (1943). - As to the enforceability of a foreign, wrongful death statute which differs from that of the forum, see Am. Jur. 2d, Death 199 to 203, 307. [FN13] Texas & P. Ry. Co. v. Cox, 145 U.S. 593, 12 S. Ct. 905, 36 L. Ed. 829 (1892); Victor v. Sperry, 163 Cal. App. 2d 518, 329 P.2d 728 (4th Dist. 1958); Hudson v. Von Hamm, 85 Cal. App. 323, 259 P. 374 (1st Dist. 1927); Burg v. Knox, 54 S.W.2d 797 (Mo. Ct. App. 1932), transferred to Mo. S. Ct., 334 Mo. 329, 67 S.W.2d 96 (1933). [FN14] Wooden v. Western N.Y. & P.R. Co., 126 N.Y. 10, 26 N.E. 1050 (1891); Nelson's Adm'r v. Chesapeake & O.R. Co., 88 Va. 9714 S.E. 838 (1892). [FN15] Floyd v. Vicksburg Cooperage Co., 156 Miss. 567, 126 So. 395 (1930); Wooden v. Western N.Y. & P.R. Co., 126 N.Y. 10, 26 N.E. 1050 (1891); Nelson's Adm'r v. Chesapeake & O.R. Co., 88 Va. 971, 14 S.E. 838 (1892). [FN16] Loucks v. Standard Oil Co. of New York, 224 N.Y. 99, 120 N.E. 198 (1918) (holding that while similarity of legislation shows beyond question that the foreign statute does not offend local policy, its absence does not prove the contrary). [FN17] Hanlon v. Frederick Leyland & Co., 223 Mass. 438, 111 N.E. 907 (1916); Kertson v. Johnson, 185 Minn. 591, 242 N.W. 329, 85 A.L.R. 1 (1932); Gregonis v. Philadelphia & Reading Coal & Iron Co., 235 N.Y. 152, 139 N.E. 223, 32 A.L.R. 1 (1923) (overruled in part on other grounds by, Silver v. Great Am. Ins. Co., 29 N.Y.2d 356, 328

N.Y.S.2d 398, 278 N.E.2d 619 (1972)); Brown v. Perry, 104 Vt. 66, 156 A. 910, 77 A.L.R. 1294 (1931) (overruled on other grounds by, Amiot v. Ames, 166 Vt. 288, 693 A.2d 675 (1997)). [FN18] Slater v. Mexican Nat. R. Co., 194 U.S. 120, 24 S. Ct. 581, 48 L. Ed. 900 (1904); Knight v. West Jersey R. Co., 108 Pa. 250, 1885 WL 11155 (1885); Nelson's Adm'r v. Chesapeake & O.R. Co., 88 Va. 971, 14 S.E. 838 (1892). [FN19] Caine v. St. Louis & S.F.R. Co., 209 Ala. 181, 95 So. 876, 32 A.L.R. 793 (1923); Ohio Southern Exp. Co. v. Beeler, 110 Ga. App. 867, 140 S.E.2d 235 (1965). [FN20] Flaiz v. Moore, 359 S.W.2d 872 (Tex. 1962). [FN21] Victor v. Sperry, 163 Cal. App. 2d 518, 329 P.2d 728 (4th Dist. 1958) (Mexican statute imposing liability without fault for damages caused by persons using dangerous mechanisms or instruments and construed as including automobiles). [FN22] Raskin v. Allison, 30 Kan. App. 2d 1240, 57 P.3d 30 (2002). 2012 Thomson Reuters. 33-34B 2012 Thomson Reuters/RIA. No Claim to Orig. U.S. Govt. Works. All rights reserved. AMJUR CONFLICTLW 110 16 Am. Jur. 2d Conflict of Laws 134 American Jurisprudence, Second Edition Database updated August 2012 Conflict of Laws Sonja Larsen, J.D. and Karl Oakes, J.D. VII. Practice; Procedural and Remedial Matters A. In General 1. In General Topic Summary 134. Generally West's Key Number Digest Correlation Table References

West's West's West's West's

Key Key Key Key

Number Number Number Number

Digest, Digest, Digest, Digest,

Action 17 Contracts 2, 101(1), 144, 276, 325 Negligence 204 Torts 103

A.L.R. Library What law governs liability of manufacturer or seller for injury caused by product sold, 76 A.L.R.2d 130 What law governs employee's right to damages for wrongful discharge, 61 A.L.R.2d 917 What law governs validity, effect, and construction of separation or property settlement agreements, 18 A.L.R.2d 760 Conflict of laws as to chattel mortgages and conditional sales of chattels, 13 A.L.R.2d 1312 Matters of procedure,[FN1] or, as sometimes stated, remedies or remedial rights[FN2] are governed by the law of the forum, that is, the law of the place where relief is sought,[FN3] without regard to the domicil of either the plaintiff or the defendant or of the law of the state or country in which the wrong was committed or the contract was made or breached.[FN4] In cases requiring the application of the law of civil law countries, courts do not presume the civil law to be the same as the forum's, but when no evidence has been presented as to the civil law, the forum court will decide the case in accordance with the law of the forum.[FN5] In cases involving the law of common-law countries, courts generally assume that the foreign law is the same as the law of the forum.[FN6] [FN1] Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 104 S. Ct. 1473, 79 L. Ed. 2d 790 (1984); Nesladek v. Ford Motor Co., 46 F.3d 734 (8th Cir. 1995); Kelley v. U.S., 580 F. Supp. 2d 490 (E.D. Va. 2008) (applying Virginia law); Middleton v. Caterpillar Indus., Inc., 979 So. 2d 53 (Ala. 2007); Huang v. D'Albora, 644 A.2d 1 (D.C. 1994); Harper v. Harper, 267 Ga. App. 553, 600 S.E.2d 659 (2004); Naughton v. Bankier, 114 Md. App. 641, 691 A.2d 712 (1997); Cosme v. Whitin Mach. Works, Inc., 417 Mass. 643, 632 N.E.2d 832 (1994); Christian v. Birch, 763 N.W.2d 50 (Minn. Ct. App. 2009), review granted, (May 27, 2009); Zurich American Ins. Co. v. Goodwin, 920 So. 2d 427 (Miss. 2006); Whitten v. Whitten, 250 Neb.

210, 548 N.W.2d 338 (1996); Freeman v. Pacific Life Ins. Co., 156 N.C. App. 583, 577 S.E.2d 184 (2003); Nash v. Tindall Corp., 375 S.C. 36, 650 S.E.2d 81 (Ct. App. 2007), cert. denied, (June 26, 2008); Jones v. R.S. Jones and Associates, Inc., 246 Va. 3, 431 S.E.2d 33 (1993); McKinney v. Fairchild Intern., Inc., 199 W. Va. 718, 487 S.E.2d 913 (1997). [FN2] Central Vermont R. Co. v. White, 238 U.S. 507, 35 S. Ct. 865, 59 L. Ed. 1433 (1915); Hatfill v. New York Times Co., 459 F. Supp. 2d 462 (E.D. Va. 2006) (applying Virginia law); Harper v. Harper, 267 Ga. App. 553, 600 S.E.2d 659 (2004); Revels v. Miss America Organization, 165 N.C. App. 181, 599 S.E.2d 54 (2004); American Standard Life and Acc. Ins. Co. v. Speros, 494 N.W.2d 599 (N.D. 1993); Blais v. Allied Exterminating Co., 198 W. Va. 674, 482 S.E.2d 659 (1996). [FN3] Dixon's Ex'rs v. Ramsay's Ex'rs, 7 U.S. 319, 2 L. Ed. 453, 1806 WL 1192 (1806); Berkwitz v. Humphrey, 130 F. Supp. 142, 57 Ohio Op. 323, 71 Ohio L. Abs. 398 (N.D. Ohio 1955); State of Cal. v. Copus, 158 Tex. 196, 309 S.W.2d 227, 67 A.L.R.2d 758 (1958). [FN4] Pritchard v. Norton, 106 U.S. 124, 1 S. Ct. 102, 27 L. Ed. 104 (1882). - As to application of the general rule that the law of the forum governs procedural and remedial matters to attachment and garnishment, see Am. Jur. 2d, Attachment and Garnishment 11. - As to application of the general rule that the law of the forum governs procedural and remedial matters to executions, see Am. Jur. 2d, Executions and Enforcement of Judgments 49. [FN5] Loebig v. Larucci, 572 F.2d 81 (2d Cir. 1978). [FN6] Loebig v. Larucci, 572 F.2d 81 (2d Cir. 1978). 2012 Thomson Reuters. 33-34B 2012 Thomson Reuters/RIA. No Claim to Orig. U.S. Govt. Works. All rights reserved. AMJUR CONFLICTLW 134

LEX LOCI CONTRACTUS 16 Am. Jur. 2d Conflict of Laws 96

16 Am. Jur. 2d Conflict of Laws 85 American Jurisprudence, Second Edition Database updated August 2012 Conflict of Laws Sonja Larsen, J.D. and Karl Oakes, J.D. V. Contracts C. Particular Issues 2. Validity Topic Summary Correlation Table References Topic Summary American Jurisprudence, Second Edition Database updated August 2012 Conflict of Laws Sonja Larsen, J.D. and Karl Oakes, J.D. V. Contracts A. In General 4. Traditional Rules a. Place of Making Contract Correlation Table References

96. Stipulation legal in one state and illegal in other West's Key Number Digest West's Key Number Digest, Action 17 West's Key Number Digest, Contracts 2 Generally, where there is a stipulation in the contract legal in one state but illegal in the other, the intention of the parties is thus manifested that the law of the former should govern.[FN1] The presumption is that the parties intend their contract to be governed by the law of the place where it is valid rather than by the law of the place where it is invalid.[FN2] [FN1] Pritchard v. Norton, 106 U.S. 124, 1 S. Ct. 102, 27 L. Ed. 104 (1882); Garrigue v. Keller, 164 Ind. 676, 74 N.E. 523 (1905); Hamilton v. Jos. Schlitz Brewing Co., 129 Iowa 172, 105 N.W. 438 (1905); Alside, Inc. v. Larson, 300 Minn. 285, 220 N.W.2d 274 (1974); Grace v. Orkin Exterminating Co., 255 S.W.2d 279 (Tex. Civ. App. Beaumont 1953), writ refused n.r.e. [FN2] Green v. Northwestern Trust Co., 128 Minn. 30, 150 N.W. 229 (1914); Franklin Nat. Bank v. Feldman, 42 Misc. 2d 839, 249 N.Y.S.2d 181 (Sup 1964). 2012 Thomson Reuters. 33-34B 2012 Thomson Reuters/RIA. No Claim to Orig. U.S. Govt. Works. All rights reserved. AMJUR CONFLICTLW 96

85. "Lex loci contractus" West's Key Number Digest West's Key Number Digest, Action 17 West's Key Number Digest, Contracts 2, 144 In some cases, application of the traditional "place of making" rule is referred to as application of the lex loci contractus.[FN1] In most instances, under the rule of lex loci contractus, courts apply the substantive law of the state where the contract was made although in some instances the courts look to the place of performance.[FN2] A limited exception to the rule of lex loci contractus has been recognized where a contractual provision or the foreign law is contrary to a very strong public policy of the forum state.[FN3] The phrase "lex loci contractus" has been used to mean both the law of the place where the contract was made and also the law by which the contract is to be governed.[FN4] Confusion also results from the fact that the expression "loci contractus" or "place of contract" may mean either the place where the contract is entered into or the place where it is to be performed,[FN5] but the phrase is generally used to signify the place where the contract is entered into.[FN6] Courts have also used the terms lex loci celebrationis, the law of the place where the contract or other obligation is solemnized,[FN7] and lex loci solutionis, the law of the place of payment or performance.[FN8]

[FN1] Volvo Const. Equipment North America, Inc. v. CLM Equipment Company, Inc., 386 F.3d 581 (4th Cir. 2004); Bailey v. Netherlands Ins. Co., 615 F. Supp. 2d 1332 (M.D. Fla. 2009); Lone Star Steakhouse and Saloon, Inc. v. Liberty Mut. Ins. Group, 343 F. Supp. 2d 989 (D. Kan. 2004); Lifestar Response of Alabama, Inc. v. Admiral Ins. Co., 2009 WL 280457 (Ala. 2009); State Farm Mut. Auto. Ins. Co. v. Roach, 945 So. 2d 1160 (Fla. 2006); Convergys Corp. v. Keener, 276 Ga. 808, 582 S.E.2d 84 (2003); In re K.M.H., 285 Kan. 53, 169 P.3d 1025 (2007), cert. denied, 129 S. Ct. 36, 172 L. Ed. 2d 239 (2008); Harvell v. Goodyear Tire and Rubber Co., 2006 OK 24, 164 P.3d 1028 (Okla. 2006). - Where an indemnity agreement was made in New York, New York law, under which the indemnity agreement was valid and enforceable, and not the law of Florida, under which it was not, applied. Pfaudler Co. v. Sylvachem Corp., 400 So. 2d 503 (Fla. Dist. Ct. App. 3d Dist. 1981). [FN2] Dragon v. Vanguard Industries, Inc., 277 Kan. 776, 89 P.3d 908 (2004). [FN3] Cherokee Ins. Co., Inc. v. Sanches, 975 So. 2d 287 (Ala. 2007); State Farm Mut. Auto. Ins. Co. v. Roach, 945 So. 2d 1160 (Fla. 2006); Ward v. Nationwide Mut. Auto. Ins. Co., 328 Md. 240, 614 A.2d 85 (1992); First Mid America Inc. v. MCI Communications Corp., 212 Neb. 57, 321 N.W.2d 424 (1982). [FN4] Gillies v. Aeronaves De Mexico, S. A., 468 F.2d 281 (5th Cir. 1972). [FN5] Pritchard v. Norton, 106 U.S. 124, 1 S. Ct. 102, 27 L. Ed. 104 (1882); Smith v. Commercial Travelers Mut. Acc. Ass'n of America, 158 F.2d 65 (C.C.A. 7th Cir. 1946); LaFarge Corp. v. Travelers Indem. Co., 118 F.3d 1511 (11th Cir. 1997); Farm Mortg. & Loan Co. v. Beale, 113 Neb. 293, 202 N.W. 877 (1925). [FN6] Mayer v. Roche, 77 N.J.L. 681, 75 A. 235 (N.J. Ct. Err. & App. 1909). [FN7] Pritchard v. Norton, 106 U.S. 124, 1 S. Ct. 102, 27 L. Ed. 104 (1882) (governs the form of the contract). [FN8] Pritchard v. Norton, 106 U.S. 124, 1 S. Ct. 102, 27 L. Ed. 104 (1882) (governs performance of contracts and other obligations. -

2012 Thomson Reuters. 33-34B 2012 Thomson Reuters/RIA. No Claim to Orig. U.S. Govt. Works. All rights reserved. AMJUR CONFLICTLW 85 16 Am. Jur. 2d Conflict of Laws 98 American Jurisprudence, Second Edition Database updated August 2012 Conflict of Laws Sonja Larsen, J.D. and Karl Oakes, J.D. V. Contracts C. Particular Issues 2. Validity Topic Summary Correlation Table References

98. Formalities; use and effect of seal West's Key Number Digest West's Key Number Digest, Action 17 West's Key Number Digest, Contracts 2, 101(1) A.L.R. Library Choice of law as to applicable statute of limitations in contract actions, 78 A.L.R.3d 639 Model Codes and Restatements Restatement Second, Conflict of Laws 199 If a contract lacks formal, as distinguished from essential, validity at the place where it is made, it is void at its inception and cannot be rendered valid by the application of any other law;[FN1] that is, the law of the place of contracting determines questions of form,[FN2] the formal validity,[FN3] or the formalities required for making a contract.[FN4] Under traditional conflict-of-laws rules, questions of the governing law as to whether an instrument is to be regarded as under seal and as to the effect of a seal depend generally upon the nature as

substantive or procedural of the ultimate question involved; as a general rule, if the ultimate dependent question is of substantive character, as for instance, the validity of the instrument in controversy[FN5] or the question as to the consideration of the contract,[FN6] the sufficiency or effect of the seal is to be determined by the lex loci contractus. Also, the validity of a seal as affecting the obligation of a contract is to be determined by the lex loci contractus.[FN7] As between the law of the place of execution and the law of the place of performance, the latter law governs in determining the effect of a seal with respect to the sufficiency of consideration.[FN8] On the other hand, if the ultimate dependent question relating to what law governs the effect of a seal is of a procedural or remedial nature, the character of the contract as sealed or without seal, and its effect or incidents as a sealed instrument must be determined by the lex fori.[FN9] Hence, where the question is whether the instrument sued on is a sealed instrument and action thereon accordingly not barred by limitations, the sufficiency of the seal is to be so tested.[FN10] The Restatement provides that the formalities required to make a valid contract are determined by the law chosen by the parties if they have made an effective choice; otherwise, they are to be determined by the local law of the state which has the most "significant relationship" to the transaction and the parties.[FN11] Also, formalities meeting the requirements of the place where the contract was executed will usually be acceptable.[FN12] [FN1] Appeal of Freeman, 68 Conn. 533, 37 A. 420 (1897); Miller v. Colonial Underwriters Ins. Co. of Hartford, Conn., 117 Kan. 240, 230 P. 1030, 38 A.L.R. 1113 (1924); Western Union Tel. Co. v. Eubank, 100 Ky. 591, 18 Ky. L. Rptr. 995, 38 S.W. 1068 (1897); Carey v. Mackey, 82 Me. 516, 20 A. 84 (1890). [FN2] Irving Trust Co. v. Day, 314 U.S. 556, 62 S. Ct. 398, 86 L. Ed. 452, 137 A.L.R. 1093 (1942); Memphis Bank & Trust Co. v. West, 260 S.W.2d 866 (Mo. Ct. App. 1953). [FN3] Linn v. Employers Reinsurance Corp., 392 Pa. 58, 139 A.2d 638 (1958). [FN4] Smith v. Harris, 127 Cal. App. 2d 311, 273 P.2d 835 (2d Dist. 1954). [FN5] Gaffe v. Williams, 194 Ga. 673, 22 S.E.2d 512 (1942). - As to the substantive/procedural problem, generally, see 5. -

[FN6] Pritchard v. Norton, 106 U.S. 124, 1 S. Ct. 102, 27 L. Ed. 104 (1882). - To determine the applicability of the common-law rule that when contract is under seal no consideration is needed, a court must look to the law of the state where the contract was executed. Houdaille Industries, Inc. v. U.S., 138 Ct. Cl. 301, 151 F. Supp. 298 (1957). [FN7] Burns Mortg. Co. v. Hardy, 94 F.2d 477 (C.C.A. 1st Cir. 1938); Coral Gables v. Christopher, 108 Vt. 414, 189 A. 147, 109 A.L.R. 474 (1937). [FN8] Pritchard v. Norton, 106 U.S. 124, 1 S. Ct. 102, 27 L. Ed. 104 (1882). [FN9] Le Roy v. Beard, 49 U.S. 451, 8 How. 451, 12 L. Ed. 1151, 1850 WL 6838 (1850); Burns Mortg. Co. v. Hardy, 94 F.2d 477 (C.C.A. 1st Cir. 1938); Gaffe v. Williams, 194 Ga. 673, 22 S.E.2d 512 (1942); Leonor v. Ingenio Porvenir C. por A., 34 N.Y.S.2d 705 (Sup 1942); Alropa Corp. v. Kirchwehm, 138 Ohio St. 30, 19 Ohio Op. 484, 33 N.E.2d 655 (1941); Coral Gables v. Christopher, 108 Vt. 414, 189 A. 147, 109 A.L.R. 474 (1937). [FN10] Bank of U.S. v. Donnally, 33 U.S. 361, 8 L. Ed. 974, 1834 WL 3802 (1834); Burns Mortg. Co. v. Hardy, 94 F.2d 477 (C.C.A. 1st Cir. 1938); Alropa Corp. v. Rossee, 86 F.2d 118 (C.C.A. 5th Cir. 1936); Gaffe v. Williams, 194 Ga. 673, 22 S.E.2d 512 (1942); Alropa Corp. v. Kirchwehm, 138 Ohio St. 30, 19 Ohio Op. 484, 33 N.E.2d 655 (1941); Wallbaum v. Martin, 103 R.I. 10, 234 A.2d 369 (1967); Coral Gables v. Christopher, 108 Vt. 414, 189 A. 147, 109 A.L.R. 474 (1937). [FN11] Restatement Second, Conflict of Laws 199(1). - As to how the state having the most "significant relationship" is to be determined, see 76. - For discussion of contract stipulations of governing law, see 78 to 80. [FN12] Restatement Second, Conflict of Laws 199(2). - As to the law governing the formal validity of assignments, see Am. Jur. 2d, Assignments 9, 10; bonds, Am. Jur. 2d, Bonds 3. - Generally, as to the form and sufficiency of a seal, see Am. Jur. 2d, Seals 6 to 10. -

 2012 Thomson Reuters. 33-34B 2012 Thomson Reuters/RIA. No Claim to Orig. U.S. Govt. Works. All rights reserved. AMJUR CONFLICTLW 98 LEX LOCI DELICTI 16 Am. Jur. 2d Conflict of Laws 108 American Jurisprudence, Second Edition Database updated August 2012 Conflict of Laws Sonja Larsen, J.D. and Karl Oakes, J.D. VI. Torts A. In General Topic Summary Correlation Table References

the injury occurred, determines liability,[FN4] or whether a person has sustained a legal injury.[FN5] In other words, tort cases are governed by the substantive law of the state where the tort, injury, or wrong occurred.[FN6] Thus, the actionable quality or nature of an act causing injury as tortious is to be determined by reference to the lex loci.[FN7] The rule of lex loci delicti is based on the "vested rights" doctrine.[FN8] The lex loci delicti rule is relatively easy to apply and imposes predictability of outcome. It is also symmetrical in that all parties injured in a single accident will have their rights adjusted by the same law.[FN9] However, predictability and protection of settled expectations are generally less important in unintentional tort cases than they are in fields such as contracts, property, and wills and trusts.[FN10] Moreover, strict application of the rule of lex loci delicti ignores the interest that jurisdictions other than that in which the tort occurred may have in the resolution of particular issues.[FN11] CUMULATIVE SUPPLEMENT Cases: Under Ohio choice-of-law provisions, the law of the place where the injury occurred will govern a tort action unless another state has a more significant relationship to the action. LeGrande v. U.S., 774 F. Supp. 2d 910 (N.D. Ill. 2011). [END OF SUPPLEMENT] [FN1] Lauritzen v. Larsen, 345 U.S. 571, 73 S. Ct. 921, 97 L. Ed. 1254 (1953); Gates v. Sprint Spectrum, L.P., 523 F. Supp. 2d 1287 (D. Kan. 2007) (applying Kansas law); Frericks v. General Motors Corp., 274 Md. 288, 336 A.2d 118, 16 U.C.C. Rep. Serv. 1232 (1975). - For a discussion of the "vested rights" theory, see 9. [FN2] Richards v. U.S., 369 U.S. 1, 82 S. Ct. 585, 7 L. Ed. 2d 492 (1962); Jones v. Prince George's County, Md., 541 F. Supp. 2d 761 (D. Md. 2008) (applying Maryland law); Williams v. General Motors Corp., 19 N.C. App. 337, 198 S.E.2d 766, 13 U.C.C. Rep. Serv. 444 (1973). [FN3] Young v. Masci, 289 U.S. 253, 53 S. Ct. 599, 77 L. Ed. 1158, 88 A.L.R. 170 (1933); Strogoff v. Motor Sales Co., 302 Mass. 345, 18 N.E.2d 1016 (1939).

108. Traditional rule; lex loci delicti West's Key Number Digest West's Key Number Digest, Action 17 West's Key Number Digest, Negligence 204 West's Key Number Digest, Torts 103 A.L.R. Library Modern status of choice of law in application of automobile guest statutes, 63 A.L.R.4th 167 Modern status of rule that substantive rights of parties to a tort action are governed by the law of the place of the wrong, 29 A.L.R.3d 603 (sec. 6(f) superseded in part by Modern status of choice of law in application of automobile guest statutes, 63 A.L.R.4th 167) The traditional choice-of-law rule applicable to multistate tort litigation is that the law of the place of the tort, or lex loci delicti, governs all matters going to the basis of the right of action[FN1] or affecting the substantive rights of the parties.[FN2] Under this rule, the law of the place of the tort,[FN3] or the law of the place where

[FN4] Stetser v. TAP Pharmaceutical Products, Inc., 165 N.C. App. 1, 598 S.E.2d 570 (2004). [FN5] Vrooman v. Beech Aircraft Corp., 183 F.2d 479 (10th Cir. 1950); Ball v. Ball, 73 Wyo. 29, 269 P.2d 302 (1954). [FN6] In re Verilink Corp., 405 B.R. 356 (Bankr. N.D. Ala. 2009) (applying Alabama law); Lifestar Response of Alabama, Inc. v. Admiral Ins. Co., So.3d, 2009 WL 280457 (Ala. 2009); Bagnell v. Ford Motor Co., 297 Ga. App. 835, 678 S.E.2d 489 (2009); Ortiz v. Biscanin, 34 Kan. App. 2d 445, 122 P.3d 365 (2004), as corrected, (Nov. 28, 2005); Nash v. Tindall Corp., 375 S.C. 36, 650 S.E.2d 81 (Ct. App. 2007), cert. denied, (June 26, 2008). [FN7] Young v. Masci, 289 U.S. 253, 53 S. Ct. 599, 77 L. Ed. 1158, 88 A.L.R. 170 (1933); Goode v. Barton, 238 N.C. 492, 78 S.E.2d 398 (1953). [FN8] Myers v. Hayes Intern. Corp., 701 F. Supp. 618 (M.D. Tenn. 1988). [FN9] Ingersoll v. Klein, 46 Ill. 2d 42, 262 N.E.2d 593 (1970); Casey v. Manson Const. & Engineering Co., 247 Or. 274, 428 P.2d 898 (1967). - As to predictability of outcome as a factor to be considered under the choice-influencing considerations approach, see 115. [FN10] Williams v. State Farm Mut. Auto. Ins. Co., 229 Conn. 359, 641 A.2d 783 (1994). [FN11] Ingersoll v. Klein, 46 Ill. 2d 42, 262 N.E.2d 593 (1970); Schneider v. Nichols, 280 Minn. 139, 158 N.W.2d 254 (1968). 2012 Thomson Reuters. 33-34B 2012 Thomson Reuters/RIA. No Claim to Orig. U.S. Govt. Works. All rights reserved. AMJUR CONFLICTLW 108 16 Am. Jur. 2d Conflict of Laws 109 American Jurisprudence, Second Edition Database updated August 2012 Conflict of Laws

Sonja Larsen, J.D. and Karl Oakes, J.D. VI. Torts A. In General Topic Summary Correlation Table References

109. Traditional rule; lex loci delicti Locating place of tort West's Key Number Digest West's Key Number Digest, Action 17 West's Key Number Digest, Negligence 204 West's Key Number Digest, Torts 103 A.L.R. Library What is place of tort causing personal injury or resultant damage or death, for purpose of principle of conflict of laws that law of place of tort governs, 77 A.L.R.2d 1266 Forms Am. Jur. Pleading and Practice Forms, Conflict of Laws 3 (Complaint, petition, or declarationAllegationWrongful death actionExistence and terms of wrongful death statute of state in which death occurred) In jurisdictions which apply the rule of lex loci delicti, an issue may arise as to whether the law of the state where an allegedly wrongful act or omission took place or that of the state where the injury or other harm was sustained should apply. In such a case, the place of the tort generally is considered to be the state where the injury or harm was sustained or suffered,[FN1] and as a general rule, a victim should recover under the system in place where the injury occurred.[FN2] That is, the situs of the tort ordinarily is the state where the last event necessary to make the actor liable[FN3] or the last event required to constitute the tort[FN4] takes place, and the substantive law of such state applies. However, a wrongful death statute may specifically identify the place of the wrongful act rather than the place of death as the jurisdiction whose law is to be applied.[FN5] Moreover, some courts take the view that the place of the wrong in a productsliability warranty action is the jurisdiction in which the product-

caused injury occurs.[FN6] In the case of loss occasioned by fraud, the place of the wrong is where the loss is sustained, not where the fraudulent representations were made.[FN7] [FN1] Brenner v. Future Graphics, LLC, 2007 WL 6663741 (N.D. Ga. 2007) (applying Georgia law); Corinthian Mortg. Corp. v. Choicepoint Precision Marketing, LLC, 543 F. Supp. 2d 497 (E.D. Va. 2008) (applying Virginia law); In re Verilink Corp., 405 B.R. 356 (Bankr. N.D. Ala. 2009) (applying Alabama law). [FN2] Grover v. Isom, 137 Idaho 770, 53 P.3d 821 (2002). [FN3] Klein v. DePuy, Inc., 506 F.3d 553 (7th Cir. 2007) (applying Indiana law); Washington Elec. Co-op., Inc. v. Massachusetts Mun. Wholesale Elec. Co., 894 F. Supp. 777 (D. Vt. 1995); Kraft Foods North America, Inc. v. Banner Engineering Sales, Inc., 446 F. Supp. 2d 551, 60 U.C.C. Rep. Serv. 2d 1058 (E.D. Va. 2006) (applying Virginia law); Alli v. Eli Lilly and Co., 854 N.E.2d 372 (Ind. Ct. App. 2006). [FN4] Erie Ins. Exchange v. Heffernan, 399 Md. 598, 925 A.2d 636 (2007). [FN5] Farwell v. Un, 902 F.2d 282 (4th Cir. 1990) (applying the Maryland wrongful death statute). [FN6] Am. Jur. 2d, Products Liability 1545. [FN7] Pat J. Murphy, Inc. v. Drummond Dolomite, Inc., 214 F. Supp. 496 (E.D. Wis. 1963), judgment aff'd, 346 F.2d 382 (7th Cir. 1965). 2012 Thomson Reuters. 33-34B 2012 Thomson Reuters/RIA. No Claim to Orig. U.S. Govt. Works. All rights reserved. AMJUR CONFLICTLW 109 Lex Mercatoria 15A Am. Jur. 2d Common Law 7
American Jurisprudence, Second Edition Database updated August 2012 Common Law

Marie K. Pesando, J.D. II. Origins Topic Summary Correlation Table References

7. Law merchant West's Key Number Digest West's Key Number Digest, Common Law 6

The law merchant has long been recognized as a part of the common law.[FN1] It is defined as the law regarding the negotiability of commercial paper as such law developed before the enactment of any statute on the subject and as originated under long-established custom and usage.[FN2] With regard to admiralty and maritime jurisdiction, the first Congress, in the Judiciary Act of 1789, declared such jurisdiction of the federal court to be exclusive, yet saved to suitors in all cases "the right of a common-law remedy, where the common law is competent to give it."[FN3] [FN1] Phipps v. Harding, 70 F. 468 (C.C.A. 7th Cir. 1895); Donegan v. Wood, 49 Ala. 242, 1873 WL 809 (1873); Barlow v. Lambert, 28 Ala. 704, 1856 WL 523 (1856); First Nat. Bank of Pomeroy, Iowa v. McCullough, 50 Or. 508, 93 P. 366 (1908); Forepaugh v. Delaware, L. & W. R. Co., 128 Pa. 217, 18 A. 503 (1889); Nash v. Harrington, 2 Aik. 9, 1826 WL 1228 (Vt. 1826); State v. Stout, 142 W. Va. 182, 95 S.E.2d 639, 59 A.L.R.2d 1154 (1956). - The law merchant, which developed out of international trade, is a composition of the rules of law and business conduct of many nations, and has become, more than any other branch of the law, international. Although these rules may, in some instances, seem strange to those who are versed in the principles of common law, the principles of the law merchant have been accepted in the English common law for many generations. Miller v. Miller, 296 S.W.2d 684, 65 A.L.R.2d 589 (Ky. 1956). [FN2] Kirkpatrick v. Lebus, 184 Ky. 139, 211 S.W. 572 (1919). - The lex mercatoria, the law merchant, is a part of the common law and governs bills of exchange, but the lex mercatoria did not, at common law, apply to promissory notes. Gates v. Fauvre, 74 Ind. App. 382, 119 N.E. 155 (1918). [FN3] Am. Jur. 2d, Admiralty 95.

- Where a state court has concurrent jurisdiction with an admiralty court under this "saving to suitors" clause, and the action is brought in the state court, the substantive law to be applied is that which would have been applicable had the action been brought in the admiralty court; but the state law applies in procedural matters. Am. Jur. 2d, Admiralty 114. 2012 Thomson Reuters. 33-34B 2012 Thomson Reuters/RIA. No Claim to Orig. U.S. Govt. Works. All rights reserved. AMJUR COMMONLAW 7 Lex Rei Sitae 16 Am. Jur. 2d Conflict of Laws 21
American Jurisprudence, Second Edition Database updated August 2012 Conflict of Laws Sonja Larsen, J.D. and Karl Oakes, J.D. III. Property A. In General

mineral leases[FN5] may be governed by the law of the state where the land is located. The same principles apply in determining what law governs the ascertainment of whether or not certain articles are fixtures. Consequently, the law of the state where the property is situated controls in deciding what annexation of a chattel to the freehold makes it a part of the realty.[FN6] Since the lex loci rei sitae will change on the removal of the property from one sovereignty to another, it follows that the character of the same property, whether personal or real, may vary according to its location.[FN7] [FN1] Sims v. Jones, 158 Ga. 384, 123 S.E. 614 (1924); Lynch v. Kentucky Tax Commission, 333 S.W.2d 257 (Ky. 1960). - Norwegian law governs the validity of Norwegian mortgages held by Norwegian mortgagees on a Norwegian vessel. A/S KredittFinans v. Cia Venetico De Navegacion S.A. of Panama, 560 F. Supp. 705, 12 Fed. R. Evid. Serv. 1877 (E.D. Pa. 1983), judgment aff'd, 729 F.2d 1446 (3d Cir. 1984) and judgment aff'd, 729 F.2d 1446 (3d Cir. 1984). [FN2] Colden v. Alexander, 141 Tex. 134, 171 S.W.2d 328 (1943). [FN3] Humble Oil & Refining Co. v. Copeland, 398 F.2d 364 (4th Cir. 1968); Commissioner of Internal Revenue v. Skaggs, 122 F.2d 721 (C.C.A. 5th Cir. 1941); Burkey v. U.S., 25 Cl. Ct. 566, 1992 WL 52529 (1992); In re Estate of Patmore, 141 Cal. App. 2d 416, 296 P.2d 863 (2d Dist. 1956); In re Binkow's Estate, 120 So. 2d 15, 80 A.L.R.2d 1100 (Fla. Dist. Ct. App. 3d Dist. 1960). [FN4] Terry v. Conway Land, Inc., 508 So. 2d 401 (Fla. Dist. Ct. App. 5th Dist. 1987), opinion approved of, 542 So. 2d 362 (Fla. 1989). [FN5] Wedel v. American Elec. Power Service Corp., 681 N.E.2d 1122 (Ind. Ct. App. 1997); Denney v. Teel, 1984 OK 63, 688 P.2d 803, 56 A.L.R.4th 527 (Okla. 1984). [FN6] Carmichall v. U.S., 273 F.2d 392 (5th Cir. 1960); U.S. v. Becktold Co., 129 F.2d 473 (C.C.A. 8th Cir. 1942); Gasaway v. Thomas, 56 Wash. 77, 105 P. 168 (1909). [FN7] Minor v. Cardwell, 37 Mo. 350, 1866 WL 4201 (1866). 2012 Thomson Reuters. 33-34B 2012 Thomson Reuters/RIA. No Claim to Orig. U.S. Govt. Works. All rights reserved.

Topic Summary

Correlation Table

References

21. Power of state to classify or characterize property within its boundaries West's Key Number Digest West's Key Number Digest, Property A.L.R. Library Oil and gas royalty as real or personal property, 56 A.L.R.4th 539 Every nation or state having authority to prescribe rules for disposition and arrangement of all property within its own territory may impress on it any character which it may choose.[FN1] The lex situs, lex rei sitae, or lex loci rei sitaethe law of the place where the property or thing is situated[FN2] determines whether it is real or personal.[FN3] Thus, disputes regarding royalties derived from oil and gas,[FN4] and future 6

AMJUR CONFLICTLW 21 16 Am. Jur. 2d Conflict of Laws 22

American Jurisprudence, Second Edition Database updated August 2012 Conflict of Laws Sonja Larsen, J.D. and Karl Oakes, J.D. III. Property B. Real or Immovable Property 1. In General Topic Summary 22. Generally West's Key Number Digest West's Key Number Digest, Property Model Codes and Restatements Restatement Second, Conflict of Laws 226, 235, Introductory Note to Topic 2 of Chapter 9 Property 6 Correlation Table References

It is a universal principle that real or immovable property[FN1] is exclusively subject to the laws of the country or state within which it is situated, and no interference with it by any other sovereignty can be permitted.[FN2] Therefore, the lex loci rei sitae, the law of the place where it is situated, governs all matters concerning the title and disposition of real property[FN3] and whether any interests in the property can be gained or lost.[FN4] This general principle includes all rules which govern the descent, alienation, and transfer of such property and the validity, effect, and construction of wills and other conveyances.[FN5] The lex rei sitae as a general principle governs in the case of any attempted transfer, whether it is voluntary or involuntary.[FN6] Caution: A matter which concerns real property merely incidentally and which is of a personal nature is not determined by the local law.[FN7] In determining whether an agreement concerns the title to lands so as to be governed by the lex loci rei sitae, the fact that it is contained in a deed conveying title to the land in question is not conclusive.[FN8]

[FN1] The Restatement Second, Conflict of Laws, Introductory Note to Topic 2 of Chapter 9, Property, provides that the term "immovable" as used in the Restatement refers to land and to things that are so attached or otherwise related to the land as legally to be regarded a part of it. [FN2] Sunderland v. U.S., 266 U.S. 226, 45 S. Ct. 64, 69 L. Ed. 259 (1924); Commissioner of Internal Revenue v. Skaggs, 122 F.2d 721 (C.C.A. 5th Cir. 1941); U.S. v. Becktold Co., 129 F.2d 473 (C.C.A. 8th Cir. 1942); Hall v. Proctor, 242 Ala. 636, 7 So. 2d 764 (1942); Gross Income Tax Division v. Bartlett, 228 Ind. 505, 93 N.E.2d 174 (1950); Succession of Martin, 147 So. 2d 53 (La. Ct. App. 2d Cir. 1962), writ refused, 243 La. 1003, 149 So. 2d 763 (1963); Kaherl v. Kaherl, 357 S.W.2d 622 (Tex. Civ. App. Dallas 1962); In re Ray's Estate, 74 Wyo. 317, 287 P.2d 629 (1955). [FN3] Sunderland v. U.S., 266 U.S. 226, 45 S. Ct. 64, 69 L. Ed. 259 (1924); King v. King, 203 Ga. 811, 48 S.E.2d 465, 2 A.L.R.2d 1181 (1948); People ex rel. Kunstman v. Shinsaku Nagano, 389 Ill. 231, 59 N.E.2d 96 (1945); Hofferd v. Coyle, 212 Ind. 520, 8 N.E.2d 827 (1937); Succession of Martin, 147 So. 2d 53 (La. Ct. App. 2d Cir. 1962), writ refused, 243 La. 1003, 149 So. 2d 763 (1963); Johnson v. Dunbar, 114 N.Y.S.2d 845 (Sup 1952), order aff'd, 282 A.D. 720, 122 N.Y.S.2d 222 (2d Dep't 1953), judgment aff'd, 306 N.Y. 697, 117 N.E.2d 801 (1954); Colden v. Alexander, 141 Tex. 134, 171 S.W.2d 328 (1943); In re Ray's Estate, 74 Wyo. 317, 287 P.2d 629 (1955). [FN4] Montgomery v. Samory, 99 U.S. 482, 25 L. Ed. 375, 1878 WL 18267 (1878); Barber v. Barber, 51 Cal. 2d 244, 331 P.2d 628 (1958); Succession of Martin, 147 So. 2d 53 (La. Ct. App. 2d Cir. 1962), writ refused, 243 La. 1003, 149 So. 2d 763 (1963); Mashunkashey v. Mashunkashey, 1942 OK 314, 191 Okla. 501, 134 P.2d 976 (1942). [FN5] Clarke v. Clarke, 178 U.S. 186, 20 S. Ct. 873, 44 L. Ed. 1028 (1900); Griese-Traylor Corp. v. First Nat. Bank of Birmingham, 572 F.2d 1039 (5th Cir. 1978); Greenwood v. Page, 138 F.2d 921 (App. D.C. 1943); Hall v. Proctor, 242 Ala. 636, 7 So. 2d 764 (1942); In re Barrie's Estate, 331 Ill. App. 443, 73 N.E.2d 654 (2d Dist. 1947); Succession of Martin, 147 So. 2d 53 (La. Ct. App. 2d Cir. 1962), writ refused, 243 La. 1003, 149 So. 2d 763 (1963); U.S. Trust Co. of N.Y. v. Boshkoff, 148 Me. 134, 90 A.2d 713 (1952); In re Krabbe's Estate, 1 Misc. 2d 450, 145 N.Y.S.2d 357 (Sur. Ct. 1955); In re Ray's Estate, 74 Wyo. 317, 287 P.2d 629 (1955).

- Restatement Second, Conflict of Laws 235 (The existence and extent of an equitable interest in land are determined by the law that the courts of the situs would apply, and such courts usually apply their own local law in determining these questions). - Generally, as to the law applicable to the descent of real property, see Am. Jur. 2d, Descent and Distribution 12. [FN6] Carroll v. Safford, 44 U.S. 441, 3 How. 441, 11 L. Ed. 671, 1845 WL 5994 (1845); Donaldson v. Greenwood, 40 Wash. 2d 238, 242 P.2d 1038 (1952). - Restatement Second, Conflict of Laws 226 (The law that would be applied by the courts of the situs determines whether there has been a transfer of an interest in land by operation of law and the nature of that interest, and such courts usually apply their own local law to determine such questions). - As to voluntary conveyances, generally, see 27 to 30. - As to what law governs the acquisition of title to real property by adverse possession, see Am. Jur. 2d, Adverse Possession 9. [FN7] Selover, Bates & Co. v. Walsh, 226 U.S. 112, 33 S. Ct. 69, 57 L. Ed. 146 (1912); Clement v. Willett, 105 Minn. 267, 117 N.W. 491 (1908); Morrison v. Morrison, 174 Va. 58, 4 S.E.2d 776 (1939). [FN8] Clement v. Willett, 105 Minn. 267, 117 N.W. 491 (1908). 2012 Thomson Reuters. 33-34B 2012 Thomson Reuters/RIA. No Claim to Orig. U.S. Govt. Works. All rights reserved. AMJUR CONFLICTLW 22 16 Am. Jur. 2d Conflict of Laws 25 American Jurisprudence, Second Edition Database updated August 2012 Conflict of Laws Sonja Larsen, J.D. and Karl Oakes, J.D. III. Property B. Real or Immovable Property 2. Contracts Relating to Real Property Topic Summary Correlation Table References

West's Key Number Digest West's Key Number Digest, Property 6

Contracts relating to the sale of realty, including executory contracts, are generally governed by the law of the jurisdiction in which the property is located.[FN1] However, in some jurisdictions, the validity and the effect of an executory contract for the sale of land are governed by the law of the place where the contract is made and is to be performed and not by the law of the place where the land is situated.[FN2] [FN1] Batman v. Cameron, 413 F.2d 999 (5th Cir. 1969); Coral Gables v. Hanley, 87 F.2d 780 (C.C.A. 6th Cir. 1937); Pickering Lumber Co. v. Whiteside, 54 Cal. App. 2d 200, 128 P.2d 899 (3d Dist. 1942); Dick v. Reves, 42 Del. Ch. 187, 206 A.2d 671 (1965); Matter of Grayco Land Escrow, Ltd., 57 Haw. 436, 559 P.2d 264 (1977); Gross Income Tax Division v. Bartlett, 228 Ind. 505, 93 N.E.2d 174 (1950); Traylor v. Grafton, 273 Md. 649, 332 A.2d 651 (1975); Vander Horst v. Kittredge, 229 A.D. 126, 241 N.Y.S. 302 (1st Dep't 1930). - The validity of a contract for the purchase of land by a Massachusetts resident was governed by the New Hampshire Sunday law under which it was valid rather than the Massachusetts Sunday law where the contract was executed in New Hampshire, the land was located in New Hampshire, and the sales contract expressly provided that New Hampshire law would govern its interpretation and effect. Cameron v. Gunstock Acres, Inc., 370 Mass. 378, 348 N.E.2d 791 (1976). [FN2] Selover, Bates & Co. v. Walsh, 226 U.S. 112, 33 S. Ct. 69, 57 L. Ed. 146 (1912); Triple Interest, Inc. v. Motel 6, Inc., 414 F. Supp. 589 (W.D. Wis. 1976); Miller v. Wilson, 146 Ill. 523, 34 N.E. 1111 (1893); Polson v. Stewart, 167 Mass. 211, 45 N.E. 737 (1897); Siegel v. Robinson, 56 Pa. 19, 1867 WL 7578 (1867). - Where a contract is made in one state for the purchase of land located in another and the purchase price is to be paid in the state where the contract is made, the lex rei sitae governs as to the title to the land, but the lex loci contractus governs the rights of the parties under the contract. Formant v. Bell, 250 A.2d 565 (D.C. 1969). -

25. Contract for sale

 2012 Thomson Reuters. 33-34B 2012 Thomson Reuters/RIA. No Claim to Orig. U.S. Govt. Works. All rights reserved. AMJUR CONFLICTLW 25 16 Am. Jur. 2d Conflict of Laws 30
American Jurisprudence, Second Edition Database updated August 2012 Conflict of Laws Sonja Larsen, J.D. and Karl Oakes, J.D. III. Property B. Real or Immovable Property 3. Conveyances and Transfers

[FN3] Harlan v. Manington, 152 Iowa 707, 133 N.W. 367 (1911). 2012 Thomson Reuters. 33-34B 2012 Thomson Reuters/RIA. No Claim to Orig. U.S. Govt. Works. All rights reserved. AMJUR CONFLICTLW 30

Topic Summary

Correlation Table

References

30. Nature of interest conveyed West's Key Number Digest West's Key Number Digest, Property 6

The nature and extent of the interest created by a conveyance of land are determined by the law of the state where the land is situated.[FN1] Thus, where a deed executed in one state conveys land in another, the law of the situs of the land determines the kind and quality of the estate taken by the grantee in the deed. The lex rei sitae also determines whether the interest conveyed under a deed is legal or equitable in nature[FN2] or whether a conveyance passed a fee simple or merely a life estate.[FN3] [FN1] In re Kellogg, 113 F. 120 (W.D. N.Y. 1902), aff'd, 121 F. 333 (C.C.A. 2d Cir. 1903); U.S. v. 246 Acres of Land, More or Less, 78 F. Supp. 377 (W.D. Pa. 1948); City of Los Angeles v. Los Angeles Farming & Milling Co., 152 Cal. 645, 93 P. 869 (1908) (riparian rights belonging to pueblo under Mexican law prior to separation of California from Mexico); Matarese v. Calise, 111 R.I. 551, 305 A.2d 112 (1973); Hardesty v. Fairmont Supply Co., 123 W. Va. 161, 14 S.E.2d 436 (1941). [FN2] McGoon v. Scales, 76 U.S. 23, 19 L. Ed. 545, 1869 WL 11462 (1869). -