The Assunzione

It is the case for the evenly balanced contract, which is the fact pattern examiners set most often. When the connecting factors point in every direction, this case tells you which one wins.

Wheat was carried from a French port to an Italian port in an Italian ship. The charterparty was with French merchants. The contract was concluded in France through Italian and French brokers, and was drawn in the English language on a standard English form. Freight and demurrage were payable in Italian currency in Italy. The facts and circumstances were equally balanced between French and Italian law.

Italian law governed, because the contract was to be performed in Italy and the money was payable there in Italian currency.

Step one — reach the third rung. There was no express choice, and no implied choice was clear. In the absence of an express or implied choice the contract is governed by the law of the country with which it is most closely connected, the test being the closest and most real connection.

Step two — run the four factors. The form of the contract; the place where it was concluded; the place where it is to be performed; and the parties' place of residence and business. Here they pointed in different directions — an English form, a French conclusion, Italian performance, mixed residence.

Step three — weigh, do not count. The factors are not weighted and not exhaustive. Treat the list as a checklist for a problem answer, not as a rule. On these facts the court gave decisive weight to performance and to the currency and place of payment.

It opens: How does the court determine the proper law in the absence of a choice? — and it is the worked example.

Use the four factors as your answer's skeleton in any problem question, and then say which way you would resolve them and why, citing this case for the proposition that performance decides where the indications are balanced.

Set it in the ladder. Express choice — Vita Food, subject to good faith, legality and public policy, with the Indian limits in British India Steam Navigation. Implied choice — Tzortzis and Amin Rasheed. Imputed — this case, and NTPC v. Singer Company for the Supreme Court's confirmation of the three-tier structure.

Add the candid Indian gloss. Delhi Cloth and General Mills Co. v. Harnam Singh holds that where the parties intended nothing it is unnecessarily artificial to impute an intention when we know there was none, and that what the courts really do is apply an objective test while appearing to reason subjectively. This case is that objective test in operation.

It does not decide any priority among the four factors as a general rule; its authority is for the resolution of a balanced case by performance.