Cooper v. Cooper

It is cited in this paper for a single sentence on capacity to contract — and for the fact that the sentence is a dictum in a marriage case. That double character is the point of the chapter.

This course records that the case related to marriage and does not set out its facts.

The capacity to contract is regulated by the law of the domicile — stated as a dictum, the case being a marriage case.

Step one — the attraction of the proposition. Capacity is an attribute of the person, and in a common law system the personal law is the law of the domicile. Applied to marriage, that is orthodox.

Step two — the difficulty of transplanting it. Commercial capacity is a different problem. This course records that there is no clear English authority on the law governing capacity to enter into a contract, and that the choice lies between the lex domicilii, the lex loci contractus and the proper law.

Step three — the objection to the lex domicilii in commerce. It will engender injustice and undermine the trust that lies at the basis of mercantile dealings: a merchant cannot investigate the domicile of everyone he deals with. The objection is stronger still for negotiable instruments, where the domicile of an unknown prior party is undiscoverable.

Step four — the complaint this course records. Together with the dictum in Sottomayor v. De Barros, this statement was pressed into service on contractual capacity, and Foote's complaint that the Sottomayor dictum unsettled the whole subject is quoted with approval. Two marriage cases were made to govern commercial capacity.

It opens: Which law governs capacity to contract? — and the first thing to say is that there is no clear authority.

Then run the three candidates and decide. Lex domicilii: supported by these dicta, rejected for the mercantile reason above. Lex loci contractus: supported by the only direct authority, Male v. Roberts, and by Lord Greene's statement that capacity is determined not by the law of the domicile but by the law of the place where the contract is made — but rejected because the place of contracting may be where the parties were merely temporarily present, and because a fixed rule would let a party evade an incapacity imposed by the law with which the contract is most closely connected by the simple device of contracting elsewhere. The best solution is the proper law objectively ascertained, that is, the law with which the contract is most closely connected.

Stress the word objectively, because it carries a mark. Capacity is deliberately not left to the parties' express choice: a party who lacks capacity cannot cure it by agreeing to a law under which he has it. Capacity is the one head where the subjective theory must not be allowed to operate.

It does not decide contractual capacity at all, and an answer that cites it as a holding rather than a dictum has missed the criticism.