Machado v. Fontes

It reduced the second limb of the rule in Phillips v. Eyre almost to nothing, and in doing so turned a rule of double actionability into the lex fori theory in disguise. It is the case every critical answer on choice of law in tort is built around.

A libel was published in Portuguese in Brazil and sued on in England. The defendant said that as the act attracted no civil liability in Brazil it was not actionable in England. The plaintiff said that as it could be criminally prosecuted in Brazil it was not justifiable.

Judgment for the plaintiff. The second limb is satisfied unless it can be demonstrated that the act in question was authorised, innocent or excusable in the country in which it was committed.

Step one — read limb two literally. Phillips v. Eyre requires only that the act not have been justifiable by the law of the place where it was done. Justifiability is a lower bar than civil liability.

Step two — a possible prosecution answers it. If the act could be prosecuted criminally in Brazil it was plainly not authorised, innocent or excusable there, whatever the civil law said.

Step three — the consequence. The plaintiff recovered in England for conduct that gave rise to no civil claim where it occurred, so the whole substance of the obligation turned upon English law — a legal system involved in the case solely because the plaintiff decided to bring his action in England.

Step four — hence the criticism. The rule as applied collapses into the lex fori theory, with its invitation to forum-shop — which is one of the two standing objections to that theory, the other being that a defendant would be held responsible on the lex fori although his act was quite innocent where it was committed.

It opens: Critically examine the rule of double actionability.

Structure the criticism around the asymmetry. Limb one requires actionability by the lex fori — The Halley, where no remedy was given for an act that was no wrong by English law although Belgian law made the owners liable. Limb two requires only non-justifiability abroad — this case. So the forum's law does all the work, and the lex loci delicti is reduced to a filter that almost nothing fails.

Then run the three theories in the order in which each corrects the last, which is the shape of the answer to any critically examine question. The lex fori theory, of German origin and advocated by Savigny in 1849, invites forum shopping and punishes innocent conduct. The lex loci delicti commissi theory names one foreign place but cannot locate itself in a modern publication tort, where the act, the parties and the damage may be in three different countries. The proper law of the tort, borrowed from contract, weighs the place of the injury, the domicile and nationality of the parties, the place of incorporation and of business, and the place where the event causing the injury occurred — flexible, at the cost of predictability.

Close with Boys v. Chaplin, where the House of Lords had its first chance since 1870 and, though unanimous on the result, gave different reasons and lost the opportunity.

It does not decide that criminal liability abroad is always enough in later law; it decides that it sufficed on this formulation of limb two, and it is cited for the collapse that followed.