CONFLICT OF LAWS

Question 1

What are the defenses that can be raised to a proposed choice of law?

Answer 1

1. That the law chosen is procedural, not substantive.
2. the law is against public policy of of forum state (brother-sister marriage)
3. the law is a penal law (applies to offenses against the public as opposed to the individual)

Question 2

Which states law is used in a personal property issue arising under the UCCs rules on secured transactions?

Answer 2

The state of the debtor’s domicile.

Question 3

What is the exception to the general rule that if a marriage is valid where performed, it is valid everywhere?

Answer 3

When the marriage would violate the public policy of the forum state (e.g. brother-sister marriage).

Question 4

What law with the forum apply in a usury case (case where money loaned at exorbitant interest rate)?

Answer 4

Law of state with some relationship to the transaction

Question 5

How does VA court treat matters that are substantive vs. procedural?

Answer 5

1. Matters of procedure are governed by law of forum.
2. Matters of substance governed by choice of law rules for that substantive area of law (could result in application of a VA law or law of another state)
3. What a law is procedural or substantive is decided by the forum.

Question 6

Matters considered procedural include:

Answer 6

1. SOL in general
2. Statutes of Frauds
3. Appropriate Remedy
4. Distribution of Wrongful Death Damages
5. Admissibility of Evidence
6. Sufficiency of Proof
7. Criminal Procedure
8. Right to Arbitration

Question 7

Matters considured substantive include:

Answer 7

1. SOL contained in the statute creating the right (or a statute directed at or referring to the statute creating the right)
2. SOL that deal with adverse possession
3. Borrowing statutes in K law
4. statutes of frauds that extinguish K right as well as remedy
5. damages in general
6. materiality of fact
7. parol evidence rule
8. direct action against insurer

Question 8

How would a VA court address a question of capacity to K where there is a conflict of laws issue?

Answer 8

Generally, a law of the place of contracting will determine the capacity to K.

However, the law of place of performance will govern the capacity to K if it differs from the law of place of contracting.

Question 9

Where place of contracting and place of performance not the same:

Answer 9

1. validity of K is governed by law of place of contracting; and
2. performance issues are governed by law of the place of performance.

Question 10

Analysis for determining choice of law of Ks:

Answer 10

1. If a UCC provision specifies applicable law
   i. that provision governs
   ii. contrary agreement effective only to extent permitted by provision
2. If UCC does not specify applicable law
   i. parties’ choice of law governs
3. In absence of a choice of law provision
   i. cases within UCC governed by law that would be selected by VAs conflict of laws principles (i.e., First Restatement approach)

Question 11

What are the three general limitations on parties autonomy to choose a K provision specifying a state law that governs the K?

Answer 11

(i) the choice must not have been obtained by unfair means (e.g. misrepresentation, duress, undue influence, or mistake);
(ii) the K must have a “reasonable relation” to state chosen, or parties must have a reasonable basis for the choice; and
(iii) law of state chosen must not be contrary to public policy of state whose law otherwise would govern (e.g., place of contracting or place of performance).

Question 12

A court will only use First Restatement approach and consider place of contracting and performance for determining an appropriate application of law if:

Answer 12

1. The K does not have a valid choice of law provision; and
2. the K does not fall under the UCC or rule of validation.

Question 13

What are three replacement theories a Virginia court will look to when deciding which law to use in a K case?

Answer 13

1. Choice by parties
2. special UCC rule
3. rule of validation.

Question 14

Strategy for deciding applicable law in contract case:

Answer 14

1. If parties choose governing law in their K
   i. and the choice not otherwise prohibited
   ii. court will apply that law
2. if no valid choice by parties and if case falls under UCC
   i. court applies appropriate rule
3. if neither of above and rule of validation applies:
   i. court applies approriate law
4. If none of 3 replacement theories applies:
   i. court will follow traditional First Restatement approach
5. If First Restatement does not apply:
   i. court may apply one of more modern (and not yet recognized in Virginia) replacement theories (governmental interest, most significant relationship)

Question 15

The rule of validation states:

Answer 15

A court will apply law of state that will sustain validity of the transaction.

As long as that state has some relation (need not be substantial) to the transaction.

Question 16

What is the general rule for choice of law in a tort case?

Answer 16

The law of the place of the wrong applies.

This is the state where the last event that is necessary to make actor liable in tort takes place.

Law of place of injury governs questions of vicarious liability, contributory negligence, and standard of care.

Question 17

What is the exception to the general rule for choice of law in a tort case?

Answer 17

Where alleged tortfeasor acts in a state where her act required or privileged

i. and her act has consequences in another state which regards act as tortious
ii. law of place of acting controls.

Question 18

Law of place of contracting is applied to determine:

Answer 18

Questions of K validity.

Question 19

Where is the place of contracting?

Answer 19

Where the final act that makes the K binding occurs:

(i) if K is effective upon delivery, place of delivery;
(ii) if issue is renewal, where new document is when old one expires;
(iii) if acceptance is by telephone, where party accepting speaks;
(iv) if acceptance is by mail, place where acceptance mailed;
(v) if the contract to be delivered by an agent, where the agent delivers it.

Question 20

Details of performance include: (i) manner, time, and locale of performance; (ii) by whom and to whom performance to be made; (iii) sufficiency of performance; and (iv) excuse for nonperformance.

Answer 20

(i) manner, time, and locale of performance; (ii) by whom and to whom performance to be made; (iii) sufficiency of performance; and (iv) excuse for nonperformance

Question 21

Statutes of limitations are regarded as procedural and governed by law of forum except where:

Answer 21

(i) a statute creating a right limits the time during which an action on the right may be brought - this “special” statute of limitations of the foreign state will be applied;
(ii) the time required for real or personal property to be acquired by adverse possession is governed by law of the situs of the property; and
(iii) under a borrowing statute, the forum applies (“borrows”) the shorter SOL of the state whose substantive law will be applied

Question 22

Matters of substance are governed by:

Answer 22

The choice of law rules for that substantive area of the law.

Question 23

What is required for a change of domicile?

Answer 23

1. abandonment of the old domicile;
2. physical presence in the new domicile
3. intent to remain for an unlimited period of time.

Question 24

What is extrinsic fraud?

Answer 24

Fraud that prevents a D from having his day in court (e.g. P prevented the D from appearing by intimidating the D).

Question 25

When is full faith and credit give to another state’s child support order?

Answer 25

Where the parties had reasonable notice and an opportunity to be heard.

Question 26

Property rights (e.g. child support and alimony) must be settled by courts that have:

Answer 26

PJ over both of the parties.

However, in ex-parte divorce cases, a court may adjucate both parties rights to marital property located within the forum state.

As long as the state has sufficient minimum contacts with the D and the property.

Question 27

How can an ex parte divorce be attacked (e.g. what arguments can be made that the divorce should not be given full faith and credit)?

Answer 27

1. There was not domicile of at least 1 of the parties
   i. however there is a rebuttable presumption of domicile;
   ii. attackor has burden of proof
   iii. can introduce evidence of any relevant facts, including facts occurring after the divorce that case doubt on Ps domicile
2. On the basis of lack of jurisdiction
   i. if forum state decides ex parte divorce void for lack of jurisdiction
   a. will not be given full faith and credit
3. attackor must not be preempted from attacking the validity of the divorce