Sottomayor v. De Barros (1879)

It states the rule that personal capacity is decided by the law of the domicile — and then confines that statement so severely, and is followed by a decision so hard to reconcile with it, that the Indian courts treated the English law on capacity as unsettled. It is also the case whose dicta were carried into the law of contractual capacity, with consequences this course criticises.

The proceedings concerned the validity of a marriage between parties said to be domiciled in a country whose law prohibited it. On the third hearing, the husband's domicile turned out to be English and not Portuguese.

The Court of Appeal stated that the question of personal capacity to enter into any contract is to be decided by the law of the domicile, but expressly confined its opinion to the case where both contracting parties are, at the time of the marriage, domiciled in a country whose laws prohibit their marriage. On remittal, the husband's domicile being English, Sir James Hannen P. pronounced the marriage valid.

Step one — the rule as stated. Capacity depends on the personal law, and in a common law system that is the law of the domicile.

Step two — the confinement. By limiting the opinion to the case where both parties are domiciled in the prohibiting country, the court left untouched the very case the dual domicile theory is meant to govern — where only one party lacks capacity.

Step three — the remittal, and the contradiction. Once the husband was found to be English domiciled, the marriage was upheld. That is difficult to square with Mette v. Mette, where an English-domiciled husband's incapacity invalidated a marriage to a German-domiciled wife. The Mysore High Court in Parwatawwa said in terms that the two cannot be reconciled.

It opens: Which law governs capacity to marry? — and the honest answer is that the English authorities conflict, which is the point.

Present the sequence. Brook v. Brook and Mette v. Mette for the dual domicile theory; this case for the rule, the confinement and the contrary result; and Parwatawwa v. Channawwa for the Indian resolution — dual domicile rejected as unworkable, only one law to govern capacity, that law being the husband's domicile if not the law of the intended matrimonial home, supported by the principle that the personal law travels with the person and by the presumption of validity arising from a ceremony followed by cohabitation.

Then follow the case into Module 4. Its dictum on personal capacity, together with Lord Halsbury in Cooper v. Cooper, was used to govern contractual capacity, and this course records the complaint that the dictum unsettled the whole subject — the objection being that two marriage cases were made to govern commercial capacity. The single direct authority the other way is Male v. Roberts, where the defence of infancy was held governed by the lex loci contractus; and the better view is the objectively ascertained proper law.

It does not decide the case of parties domiciled in different countries where only one has capacity; the confinement of the opinion is the whole difficulty.