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Report No. 65

V. Common Law

17.18. Public policy in common law in relation to conflict of laws.-In the common law system, public policy has a more limited role in the field of conflict of laws. There is no choice of law problem in regard to divorce. Also, there has not been, on the whole, so much emphasis on methodology as in French law1n(and in some other European systems)-involving a division of the problem into (a) the application of the conflicts rules, (b) the effects of public policy. If the lex fori is not applied, then the choice of law determinants which affect recognition problems are-(i) the personal law, and (ii) the rule locus regit actum2.

The former enters into questions of capacity to marry in many jurisdictions, and the usual attitude of the courts is to reject a foreign law solution indicated by the personal law, only where the solution is considered to be inconsistent with fundamental moral or social concepts. Public policy is thus an ultimum remedium, and there have been few English cases3 in which it has been raised explicitly in the context of private international law.

1. Cf para. 17.13, supra.

2. 1961 Can Bar Rev 309.

3. See for instance-

(a) Pugh v. Pugh, 1951 Probate 482: (1951) 2 All ER 680 (Capacity to marry).

(b) Paine (in re:), (1940) 1 Ch 46: (Capacity to marry). For comment, see 56 LQR 514.

(c) Brook v. Brook, (1861) 9 HLC 193: (Capacity to marry) (Deceased wife's sister).

(d) Mette v. Mette, (1859) 1 Sw and Tr 416. (Deceased wife's half sister).

17.19. A query has been raised whether this means that the common-law systems consider the content of the foreign law only in exceptional circumstances, where the foreign law might offend some of the most deeply held policies of the forum. In this context, Drucker1 quotes, from a book on private international law by Professor Lund of Moscow University, published in 1949, a statement to the effect that in the Anglo-American jurisdictions, private international law is: "One of the means of legal technique directed to restrict the applicability of foreign."

laws, and to widen the sphere of municipal law

This would show that the objective employed is the same, both on the continent and in common law, though the scope for the application of the doctrine of public policy is more limited in common law than in continental countries.

1. Drucker in (1955) 4 Int & Comp LQ 386.

17.20. English cases.-

English reported cases dealing with public policy, are comparatively few, in the field of conflict of law.1 Most of the English cases which2 are habitually adduced to prove early application of public policy, are not really3 in point.4 And, indeed, there was neither need nor use of the doctrine until the establishment of the "vested rights" dogma at the end of the last century. In this field, as in others, "public policy" appeared when the common law failed to keep "in touch with the needs of the day."5

1. See para. 17.18, supra.

2. See also Katzenbach Conflicts on an Unruly Horse: Reciprocal Claims and Tolerances in Inter-State and International Law, (1956) 65 Yale 14 1087.

3. Ehrenzweigh Conflict of Laws, (1962), p. 342.

4. Robinson v. Bland, 2 Burr 1077: 97 Eng Rep 717 (1760) (contract unenforceable under both laws); De Wutz v. Hendricks, 2 Bing 314: 130 Eng Rep 326 (1824) (contract held "contrary to the law of nations" as directed against friendly government); Sentos v. Illid,4a, 8 CB (NS) 861: 141 Eng Rep 1404 (1860) (interpretation of statute in terms of applicable to foreign transaction); Crell v. Levy, 16 CB (NS) 73: 143 Eng Rep 1052 (1864) (contracts to be performed in England). Only Hope v. Hope, 8 De GM&G 731 (743): 44 Eng Rep 572 (576) (1857) was based on the forum's "policy".

5. Holdworth A History of English Law, (1926), Vol 8, p. 56.

17.21. Alternative to public policy-Story's approach.-

In 1827, Louisiana court remarked "that in the conflict of laws, it must often be a matter of doubt which (law) should prevail, and that whenever that doubt exist, the court which decides, will prefer the law of its own country, to that of the stranger."1 Story found "great truth" in this statement, and returned to its message in virtually every chapter of his analysis2, without having to resort to an "exception" of public policy. Only in those few areas where past centuries had produced a semblance of rules "by which nations are morally or politically bound,"3 was there need, and indeed room, in his work for such an exception.4

1. Soul v. His Creditors, 5 Martin R (NS) 569 (595) (La 1827).

2. Story 29.

3. Story 71.

4. Thus, Story believed that "by the general law of nations, jure gentium (a contract valid under the law of the place where it is made, is) held valid everywhere"-Story 201. To correct the results of this (erroneous) assumption, the lex fori re-enters as to contracts "against goad morals, or region or public rights", Id. 213. See also as to marriage contracts, id., 104.

17.22. Classification by Cheshire.-

Cheshire, in an earlier edition1 of his Private International Law, divided English cases on public policy into four classes, viz.-

(1) Where the fundamental conceptions of English justice are disregarded for example, where a party has been denied a proper hearing, or there is fraud, undue influence or duress as in the case of Kaufman v. Gerson, (1904) 1 KB 591.

(2) Where English conceptions of morality are infringed.2 This is apparently confined to sexual immorality.

(3) Where the transaction prejudices the interests of the United Kingdom or its relations with foreign powers; e.g., agreements involving relations with enemy aliens3, or to further revolt abroad,4 or for the import of liquor contrary to foreign prohibition laws.5 The cases cited were concerned with English contracts. It may be, however, that the rule of internal public policy would probably be applied externally in the case of similar contracts governed by foreign law.

(4) Where a foreign status offends the English conception of human liberty and freedom of action,-e.g., a contract relating to slavery, or the status of a 'prodigal' in French law6, or a foreign rule prohibiting re-marriage after a decree of divorce has finally dissolved the marriage.

The last mentioned class, according to Lloyd7, seems indeed to be no more than an illustration of English public policy in relation to personal freedom, and it probably needs to be broadened to cover such other freedoms as freedom of trade, which the common law regards as its distinctive policy to protect.8

1. Cheshire Private International Law, (1952), pp. 145-9, cited by Lloyd Public Policy, (1953) of Cheshire, 1975, pp. 151-155.

2. Robinson v. Bland, (1760) 2 Burr 1077 (1084).

3. Dynannt A.G. v. Rio Tinto, 1918 AC 292.

4. De Witz v. Nedricks, (1824) 2 Bing 314.

5. Foster v. Criscoll, (1929) 1 KB 470.

6. (a) Worms v. De Caldor, (1880) 49 LJ (Ch) 261; (b) Selot's Trusts (in re:), (1902) 1 Ch 488.

7. Lloyd Public Policy, (1953), p. 95.

8. Cf. (a) Roussillon v. Rousillon, (1880) 14 Ch D 351; (b) Warner v. Helson, (1937) 1 KB 209.

17.23. Public policy and duress.-

Public policy could be a useful head for dealing with duress. If fraud is regarded as a vitiating cause, then duress also should be so regarded. The means employed should not matter, if the freedom of will of a party is in issue. It should also be immaterial whether the vitiating factor operated on the party directly or so acted indirectly. Lord Devlin observed, in another context,1 "All that matters to the plaintiff is that, metaphorically speaking, a club has been used. It does not matter to the plaintiff what the club is made of-whether it is a physical club or an economic club, a tortious club or an otherwise illegal club."

1. Rooke v. Bernard, 1964 AC 1129 (1209) (per Lord Devlin); also ibid., pp. 1109 (1201).

17.24. Duress in relation to marriage.-

We may refer to a case illustrating duress. In Szechter v. Szechter, (1971) 2 WLR 170 (180) the petitioner consented to marriage, in order to escape from imprisonment in truly appalling conditions and from threats of a mental home; a severe sentence of imprisonment, followed almost certainly by re-arrest; and, in any event, by the prospect of penury, inability to obtain any employment other than of a mental nature and inability ever to lead a normal life. Sir Jocelyn Simon, President, in giving his reasons for making a decree of nullity, said-

"It is, in my view, insufficient to invalidate an otherwise good marriage that a party has entered into it in order to escape from a disagreeable situation, such as penury or social degradation. In order for the impediment of duress to vitiate an otherwise valid marriage, it must, in my judgment, be proved that the will of one of the parties thereto has been overborne by genuine and reasonably held fear caused by the threat of immediate danger (for which the party is not himself responsible), to life, limb or liberty, so that the constraint destroys the reality of consent to ordinary wedlock".

He also added that for a threat to be an immediate specific threat. "It is sufficient if there is a present continuing danger, though the apprehended death, injury or deprivation of liberty may not happen until an unknown future time. Equally, in my judgment, though dangers of mere penury or social degradation will not of themselves invalidate an otherwise good marriage, they cannot be disregarded if they form an essential element in the danger to life, limb or liberty."

17.25. Duress in relation to dissolution.-

In the case of Mayer1, Bagnall J. after discussing Szechter v. Szechter, (1971) 2 WLR 170 (para. 17.24, supra.), observed:-

"The doctrine of duress then applies to the contract of marriage; does it apply to a dissolution of marriage? If the question arose in relation to a system of law which recognised divorce by consent, I should have no doubt that the doctrine would apply. For, as in marriage, there would be a special type of contractual arrangement which altered status. But the doctrine is not confined to acts which are contractual, or bilateral or multilateral; it applies to making a will and it applies to a voluntary disposition inter vivos. I can see no reason in logic or in principle why it should not apply to a decree of divorce obtained under duress, at any rate where an English court is considering a decree granted by another jurisdiction. It may be that different considerations would apply if an English court were considering a decree pronounced by an English court; but I am not concerned with that situation.

"I should add that I am fortified in my opinion by an obiter dictum of Barnard J. in Burka v. Burka, (unreported) shortly reported in the Times, March 17, 1955, where after holding that a marriage contracted in Russia, was invalid, the judge added that if the marriage had been valid, he would have held that a decree of divorce obtained in Russia would have been ineffective to dissolve it because the wife was being "persecuted and tyrannized to obtain a divorce. It appears from the file, which I have examined, that there, the Russian wife and her mother were being threatened with terms of imprisonment unless she obtained a divorce."

1. Mayer (in re:), (1971) 2 WLR 401 (407, 408) (Bagnall), J.).

17.26. Public policy as the ultimate foundation.-

In India, England, America and other countries, generally rules which protect a person against undue influence, exploitation bordering on blackmail or extreme restriction of personal freedom, are well-known. These rules could be regarded as the special manifestations of the principle of good faith and decency; but, in the ultimate analysis, they could be treated as application of the doctrine of public policy. The application of the doctrine, no doubt, varies in time and space, and alsq with the sense of justice of the Judge.

Further, it involves a value judgment, standing above the literal text of the law; but the rationale of its application, in general, is that the foreign legal provision which is otherwise regarded as applicable under the rules relating to the conflict of laws is not acceptable, being inconsistent with the values, explicit or implicit, in the internal legal order.

17.27. Doctrine elsewhere.-

It is to be noted that the doctrine of public policy is not confined to continental countries, and similar doctrines are found in many other countries, for example, Argentine1, Brazil2, and Mexico3. The application of the doctrine is not confined to recognition of judgments. The doctrine is also relevant in connection with the proceedings in progress or terminated abroad, and in connection with certain other procedural matters.

1. Argentina Federal Code of Civil Procedure, section 599.

2. Brazilian Code of Civil Procedure, section 792.

3. Mexican Code of Civil Procedure, section 785.

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