Male v. Roberts

It is the single direct authority in this course on capacity to contract. Everything else on the head is dicta from marriage cases, which is why a decision, however slight, matters.

Money was advanced in Scotland to an infant apparently domiciled in England. The defence raised was infancy.

The defence of infancy was held governed by the lex loci contractus — the law of the place where the contract was made.

Step one — the competing candidates. For capacity the choice lies between the lex domicilii, the lex loci contractus and the proper law, and this course records that there is no clear English authority.

Step two — the case chooses the place of contracting. The advance was made in Scotland, and Scots law governed the question whether the borrower could bind himself.

Step three — the drift the other way. During the later nineteenth century the tendency moved towards treating capacity as a matter of personal law, on the dicta of Cotton L.J. in Sottomayor v. De Barros — that as in other contracts so in marriage, personal capacity depends on the law of the domicile — and of Lord Halsbury in Cooper v. Cooper. This course records the qualification that those statements were mere dicta, both cases relating to marriage, and quotes Foote's complaint that the Sottomayor dictum unsettled the whole subject.

It opens: Which law governs capacity to contract? — cite this case first, precisely because it is the only direct authority, and then explain why it does not settle the question.

Give the three-way analysis and reach a conclusion, because the examiner wants one. The lex domicilii is rejected for commerce: it would engender injustice and undermine the trust that lies at the basis of mercantile dealings. The lex loci contractus is rejected because the place of contracting may be where the parties were temporarily present, and because a fixed rule would let a party evade an incapacity imposed by the most closely connected law by contracting elsewhere. The best solution is the proper law objectively ascertained.

Carry the point into negotiable instruments, where it recurs and is worse. Neither the Negotiable Instruments Act, 1881 nor the Bills of Exchange Act 1882 nor the Hague Convention lays down a uniform rule on capacity, so the general rule for commercial contracts applies — and that general rule is itself unsettled. The reason for preferring the objectively ascertained proper law applies with more force there, because negotiability makes the domicile of an unknown prior party undiscoverable.

It does not decide the modern law; treat it as the only decided point in a field of dicta.