CHAPTER XXXVII. THIRD DIVISION-MEDIATE EFFECTS OR ACCIDENTAL CONSEQUENCES OF CONTRACTS-DAMAGES-CURRENCY -STORY'S COLLATERAL INCIDENTS, ARISING BY, (1) OPERATION OF LAW, (2) ACT OF THE PARTIESLIENS, PRIORITY OF LIABILITY OF PARTNERS. DCCXVIII. We have now to consider the third division of the subject-viz. The mediate effects and accidental consequences of Contracts (a). "We have called (Rocco (b) says) "the accidental consequences of contracts, those which neither "mediately nor immediately are derived from them, but which "take their origin from facts subsequent to the contracts "themselves; from circumstances which intervene and effect "the status and the relation in which the contracts have placed "the parties." Between these consequences and those discussed in the last chapter (c) there are grave distinctions. "The former, when the Contract is made in our kingdom, "are governed by our laws; the latter are subject to the laws "of the place in which the fact which produced them happened." These accidental consequences are called suites by Felix (d), as distinguished from effects. 66 DCCXIX. One of the most important of these accidental consequences of a Contract is the right to damages (dommages-intérêts, and intérêts moratoires) arising out of delay, de morâ (la demeure dans l'éxécution), in the fulfilment of it. (a) Vide antè, p. 523. (c) Immediate and mediate. Story (d) is of opinion that the rule, as to the Law which shall govern the assessment of damages, and determine their rate, is analogous to the rule of Law respecting interest which has been just discussed. Thus the United States Courts have decided, that if a note be made in a foreign country, for the payment of a certain sum in sugar at a valuation, and there be a breach of the Contract, the Law of the place governs the assessment of the damages (e). The same principle is applied in fixing the rate of damages for dishonoured bills of exchange (ƒ). DCCXX. The right to damages arises also from wrong done to property, that is, in this branch of Private International Law, to personal property, or ex delicto, perhaps more properly ex maleficio. Thus, if a ship in foreign or colonial waters be wrongfully seized or appropriated, the interest of that locality will be allowed by way of damages against the wrongdoer (g). DCCXXI. A question (h) often mooted, and not very satisfactorily or consistently settled either by the English or the United States Tribunals, arises with respect to the value of the currency by which the amount of a debt, which has been contracted in one country and is sued for in another, is to be ascertained. The following predicaments appear to embrace the cases which arise under this head: 1. Where the par value between the currencies of the two countries is nominal or established by Law. (d) S. 307. (e) Story, s. 307. Courtais v. Carpentier, 1 Wash. Circ. (Amer.) Rep. 376. (g) Ekins v. East India Company, 1 P. Williams' Rep. 394-6. Consequa v. Willings, Peters' Circuit Rep. 225, 303. 2. Where there is no established par. 3. Where the debt has been contracted to be paid in a particular specified coin. 4. Where the currency between the time when the debt was contracted or became due, and the time of actual payment, has suffered a depreciation in value. DCCXXII. With respect to these four predicaments there are two general propositions, the latter being indeed a necessary conclusion from the former, which applies to them all. First, the primary consideration in all cases is, in what place was the money, according to the original Contract, payable; for the creditor, in whatever place he may sue, is entitled to have an amount equal to what he must pay, in order to remit it to the place in which it is payable (i). This rule is well expressed by the two Voets (k). John Voet says, "Quid si in specie de nummorum aut reddituum "solutione difficultas incidat, si forte valor sit immutatus; "an spectabitur loci valor, ubi contractus erat celebratus, an "loci in quem destinata erat solutio? Respondeo, ex generali regulâ spectandum esse loci statutum, in quem destinata "erat solutio" (1). 66 Paul Voet says, " Si major, alibi minor, eorundem num"morum valor sit in solutione faciendâ, non tam spectanda potestas pecuniæ, quæ est in loco, in quo contractus cele"bratus est, quam potius quæ obtinet in regione illâ in quâ "contractus implementum faciendum est" (m). The second general proposition flows as a natural conclusion from that which has just been stated-viz. That the creditor is entitled to receive that sum in the currency of the state in which the suit is brought, to which he is entitled in the state in which the debt is payable, a sum calculated (i) Story, s. 310. (k) Story, s. 309, 310, cites these authorities in the notes. (m) Ad Pandec. 1. xii. t. i. 25. therefore by the real and not the nominal par of exchange (n). This is the doctrine generally adopted by continental jurists. With respect to the third predicament—namely, where the Contract is to be paid in a particular specified coin, Story (o) is of opinion that the mint value, not the mere bullion value, of the coin in the state in which the coin is issued, furnishes the proper standard, because it is referred to by the parties by its descriptive name as coin. DCCXXIII. It unfortunately happens, that the decisions of the tribunals in England and of the North American United States are by no means uniform; they are indeed inconsistent both in a national and an international point of view. Story goes so far as to pronounce that "there is an irre"concileable difference in some of the authorities on this "subject" (p). It is probable that the increased and happily increasing knowledge both of the civil and of foreign Law in both states, may lead to judgments settled on the sound principles of general jurisprudence (9). DCCXXIV. The fourth predicament relates to the depreciation of money between the time when the debt was (n) Story, s. 309. Cash v. Kennison, 11 Vesey's Rep. 314 (Lord Eldon). (0) S. 309. (p) S. 311 (a). (4) The English cases are Ekins v. East India Company, 1 Peere Williams' Rep. 396 (Lord Chancellor Cowper, 1717). Delegal v. Naylor, 7 Bingham's Rep. 460. Scott v. Bevan, 2 Barn. & Adolphus' Rep. (1831, Lord Tenterden C. J.) Lee v. Wilcocks, 5 Serge & Rawle's Rep. 48. Stapleton v. Conway, 1 Vesey's (Sen.) Rep. 427 (1750, Lord Chancellor). Rourke v. Picketts, 10 Vesey's Rep. 332 (1804, Master of the Rolls). contracted or due, and the time when it is actually paid; Nobilissima quæstio, as it has been not improperly designated (r). This question may present itself in two very different forms: 1. As a case of International Law arising ex delicto of a wrongdoer, whether a state or an individual. 2. As a case of International Law arising out of a Contract between individuals, the subjects of or domiciled in different states, or from the dispositions of a unilateral act, such as a will or deed executed by an individual who is a subject of or domiciled in one state, which affects the rights of an individual who is a member of or domiciled in another state. DCCXXV ($). As to the case of the wrongdoer, it has no analogy, as Sir William Grant observed, to the case of creditor or debtor; the obligation on the wrongdoer, be he a government or an individual, is to undo the wrong act and put the party into the same situation as if he had never done. it. So in the case reported by Sir John Davies: he says, "Two cases were put by the judges who were called to the "assistance of the Privy Council, although they were not "positively and formally resolved; "he says, "it is said, if "a man upon marriage receive 10007. as a portion with his "wife, paid in silver money, and the marriage is dissolved "causâ precontractûs, so that the portion is to be restored, "it must be restored in equal good silver money, though the "state shall have depreciated the currency in the meantime. "So, if a man recover 1007. damages, and he levies that in good silver money, and that judgment is afterwards re"versed, by which the party is put to restore back all he has "received, the judgment-creditor cannot liberate himself by 66 (r) Vinnius ad instit. 1. iii. t. xv. (s) Pilkington v. Commissioners for Claims on France, 2 Knapp's Privy Council Reports, p. 19. This is the leading case on this subject. |