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United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Cooper v. Cooper and Others [1888] UKHL 400 (24 February 1888)
URL: http://www.bailii.org/uk/cases/UKHL/1888/25SLR0400.html
Cite as: 25 ScotLR 400, [1888] UKHL 400
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SCOTTISH_SLR_House_of_Lords
Page: 400↓
House of Lords.
(Before the
v.
(Ante, Jan. 9, 1885, 22 S.L.R. 314, and 12 R. 473.)
Subject_Minority — Capacity to Contract — Marriage-Contract — Law of Domicile and Place of Contract — Irish Law.
Facts:
An Irishwoman, aged eighteen, was married in Ireland to a Scotsman in 1846. Prior to her marriage she executed an antenuptial marriage-contract in the Scotch form. After her husband's death in 1882 she brought an action of reduction of the marriage-contract against her husband's trustees and the children of the marriage, in which she averred (1) that she was in minority when she signed it, and (2) that there had been lesion. The first of these grounds of reduction was not maintained in the Court of Session, and the judgment of the Court assoilzieing the defenders from the reductive conclusions of the action proceeded upon a finding that there had been no lesion.
On appeal the appellant maintained that by the law of Ireland, which was the law of her domicile, and also of the place where the contract was entered into, she could not, being in minority, bind herself by the marriage-contract. The respondents in answer contended that the appellant had excluded consideration of this question by not arguing it in the Court of Session; that the question of Irish law was a question of fact in the Court of Session; and that no evidence had been led in support of the appellant's view; further, that the Irish law did not apply, as the marriage-contract was Scotch, the domicile
Page: 401↓
of the intended husband was Scotch, and Scotland was the place where the contract was to be fulfilled. Held ( rev. judgment of the Second Division) that the appellant was not barred from maintaining this ground of reduction, which was averred upon record; that the House of Lords, as the commune forum of the three countries, deals with such a question not as one of fact but of law, and therefore no evidence was required; that the law of Ireland, which is the same as that of England, was applicable, by which the appellant, being a minor, was incapable of entering into the marriage-contract; and that therefore the objection was fatal to the validity of the deed.
This case is reported ante, Jan. 9, 1885, 22 S.L.R. 314, and 12 R. 473.
The pursuer appealed.
At delivering judgment—
A question has been raised whether the contract was not in fact executed after the celebration of the marriage, but without minutely considering the evidence I am satisfied with the conclusion of the Lord Ordinary that the contract was executed before the marriage, a conclusion which indeed is but feebly contested on the other side.
A Scottish widow is entitled to her jus relictæ and to her terce unless they have been discharged, and the appellant seeks to remove the bar to these rights by setting aside the contract in question which, if unimpeached, discharges these rights.
My Lords, I think there has been some slight confusion between the question what forum can decide the controversy between the parties, and what law that forum should administer in deciding it. Now, it is admitted that the appellant was a domiciled Irishwoman at the time she executed the instrument in question. It is admitted she was a minor, and apart altogether from the remedy peculiar to Scottish jurisprudence of setting aside a contract which operates to the enorm lesion of a minor—a question to be determined in a great measure by the position of the parties and the provisions of the contract itself—the first question arises here whether a domiciled Irishwoman could bind herself at all while a minor by a contract executed in Ireland.
There can be no doubt as to what would be the rule of English law in this respect. The line of cases which were brought to your Lordships' attention upon the subject of provisions whereby the common law right of dower was extinguished seem to me beside any question in this case. The statute created the power of extinguishing the right to dower, and courts of equity have from time to time considered and acted upon their view, how far the provision for the wife has complied with the conditions of the statute, but such cases have no relation to the question of a minor's capacity by his or her act to part with rights with which the law would otherwise invest them. None of these cases relate to the question of incapacity to contract by reason of minority, and the capacity to contract is regulated by the law of domicile. Story has with his usual precision laid down the rule (Conflict of Laws, s. 64) that if a person is under an incapacity to do any act by the law of his domicile, the act when done there will be governed by the same law wherever its validity may come into contestation with any other country—“quando lex in personam dirigitur respiciendum est ad leges illius civitatis quæ personam habet subjectam.”
There is an unusual concurrence in this view among the writers on international law—“qua aetate minor contrahere possit et ejusmodi respicere oportet ad legem cujusque domicilii”—Burgundus Tract 2, n. 6. “C'est ainsi que la majorite et la minorité du domicil ont lieu partout mêmo pour les biens situés ailleurs”—1 Boullenois, Princip. Gen. 6. “Quotiescunque de habilitate aut de inhabilitate personarum quæratur toties domicilii leges et statuta spectanda”—D'Argentre. So also J. Voet—“Quoties in questione au quis minor vel majorennis sit obtinuit id adjudicandum esse ex lege domicilii sit at in loco domicilii minorennis. Ubique terrarum pro tali habendus sit et contra.”
It is said that the familiar exception of the place where the contract is to be performed prevents the application of the general rule, and that as both parties contemplated a Scottish married life, and as a consequence a Scottish domicile, the principle I have spoken of does not regulate the contract relations of these two persons. I think two answers may be given to this contention. In the first place, I think it is a total misapplication of the principle upon which the exception is founded. Here there is no contractual obligation to make Scotland the domicile, nor is there any part of the contract which could not and ought not to receive complete fulfilment even if (contrary to what I admit was the contemplation of both the parties) the place of married life should remain Ireland as if they had emigrated altogether and gone to some other country.
But another and a more overwhelming answer is to be found in this, that the argument assumes a binding contract, and if one of the parties was under incapacity the whole foundation of the argument fails.
Two other considerations remain to be noticed. The first, and what I confess has caused me most difficulty, is whether the question is open for your Lordships on this record, or whether the parties have not concluded themselves by their pleadings to the sole question whether, assuming the Scottish law to apply, there has been enough to set aside the contract on the ground of the lesion of the minor. Undoubtedly that does seem to have been the leading contention, and it is the ground upon which the Judges have in the Court below determined this question.
Upon considering the first plea-in-law carefully in its several parts, I think it is intended to raise the question of whether minority alone apart from lesion does not invalidate the contract; and therefore I agree that the question is open upon this record, and I also agree that the Lord Ordinary's interlocutor and the annexed note show that in his Lordship's opinion the contract made in Dublin, and by a minor domiciled there, would not deprive her of the right to sue
Page: 402↓
The only remaining question is one which I certainly do not think one of difficult solution, though the statement of it appears to involve a somewhat anomalous state of things. Your Lordships sitting here require no evidence, indeed can receive no evidence of English or Scottish law. If in the Scottish Courts evidence had been given of English law, and no evidence adduced to contradict it, it would nevertheless be incumbent on your Lordships to decide according to your own views as to what the law of England is, even if it should be in absolute contradiction of all the evidence that had been received in the Scottish Courts; and it is manifest therefore that if all the facts are before your Lordships for decision, and if the point is open (and I have endeavoured to show it is open to the parties to contend), then it is not only competent but incumbent upon this House to decide upon the true view of what legal rights these facts establish, although what was a question of fact in the Court of Session was not there mooted, but is for the first time argued here before your Lordships.
This may affect the costs, and I think ought to affect the costs to the extent that I think the successful appellant ought not to get the costs of an appeal which was brought and successfully argued upon a point not pressed upon the Court below either by argument or evidence, but cannot in my judgment affect the right of the parties in the judgment which your Lordships ought to pronounce.
I designedly abstain from expressing my opinion upon the divergent views of the learned Judges in the Courts below. All the judgments assume as their foundation the validity, subject to reduction upon the ground of a lesion, of the contract in question, but in the view I have expressed as to that matter any opinion I might give upon the very difficult question as to what constitutes enorm lesion so as to justify the reduction of a minor's contract, would be unnecessary, and therefore improper in deciding this case.
I therefore move your Lordships that the interlocutor appealed from be reversed, but that the appellant should have no costs either here or below.
Upon the same day on which the marriage ceremony was performed the parties entered into a written contract, which bears to have been executed intuitu matrimonii. The only provision thereby made in the wife's favour is a personal obligation, prestable by the heir and executors of the husband, to make payment to the appellant in the event of her surviving him of an annuity of £80, and in consideration of that provision the appellant discharges her legal rights of terce and jus relietm, and all other claims competent to her upon his predecease, excepting such provisions as he might give her of his own free will. By his trust-disposition and settlement Mr Cooper directed his trustees to pay to the appellant out of the rents of his lands of Ballindalloch and others, an annuity of £200 in lieu of all claims and provisions, whether legal or conventional.
This action was brought by the appellant after her husband's death for the purpose of reducing and setting aside the discharge contained in the marriage-contract of 15th October 1846, and of enforcing her legal rights.
The facts of the case, so far as I have already stated them, are matter of admission upon the record. The condescendence and pleas-in-law for the appellant when fairly construed disclose three separate grounds of reduction, all of which are disputed by the respondents. Taking the appellant's averments, not in the order in which they occur, but according to their logical sequence, it is alleged—First, that the contract sought to be reduced was executed by the spouses (or at all events by the appellant) after the marriage; secondly, that the appellant being an infant was by the law of Ireland “incapable of contracting to the effect of discharging or renouncing the claims that would according to the law of Scotland be competent to her if she survived her husband and thirdly, that assuming the contract to be antenuptial and valid the discharge of her legal rights was to her enorm lesion.
The first and second of these grounds of action go to the very root of the case. If the marriage-contract was, notwithstanding its tenor, postnuptial, then the discharge is revocable by the appellant as a donatio inter virum et uxorem. If the capacity of the appellant to contract must be determined by Irish, or (what is the same thing) by English law, and she was according to that law incapable of binding herself, the discharge cannot stand in the way of her legal rights.
In my opinion the appellant has failed to prove that the contract was executed after marriage. The only evidence bearing upon that part of her case is to be found in the testimony of the appellant herself, and of Mr Horan, both of whom signed the deed under reduction, the one as a contracting party, and the other as a witness. Their recollection of other circumstances occurring at the time is not very distinct, and I do not-think that their reminiscences as to the signing of the deed, however honest, can be held after the lapse of eight-and-thirty years sufficient to displace a material fact appearing from the tenor of a probative deed which they attested by their subscriptions. Had it been proved that in point of fact the parties adhibited their signatures immediately after the ceremony was concluded, I should still have been of opinion that the deed was not thereby deprived of its antenuptial character.
Page: 403↓
The respondents argued that the second ground of reduction is excluded from this appeal, and that your Lordships have not jurisdiction to determine either the applicability of English law or its effect as regards the appellant's capacity to contract. In the course of the argument it was suggested that the appellant's case, so far as it is based on the law of England, was disposed of by an interlocutor of the Lord Ordinary dated the 31st May 1884, which simply repels the third plea-in-law for the respondents. That interlocutor has been appealed from, although it was not submitted to the review of the Inner House. Taken by itself it does no more than affirm in general terms the relevancy of the appellant's action as laid, but the annexed note shows that the Lord Ordinary merely intended to decide, on the assumption of the Irish contract being valid, that the appellant was nevertheless so entitled to sue for the remedy of reduction on the head of minority and lesion according to the law of Scotland, her matrimonial domicile.
It is admitted that the appellant did not ask the judgment either of the Lord Ordinary or of the Inner House upon the merits of her objection to the contract founded upon English law. But according to the ruling of the Lord Chancellor (Brougham) in Luke v. The Magistrates of Edinburgh ( 6 W. & S. 241) that circumstance of itself does not necessarily prevent your Lordships from considering the objection now if it be sufficiently raised on the record. The peculiarity of the present case, upon which the respondents strongly relied, consists in this—that in the Courts of Scotland English law is treated as matter of fact, and must be proved as well as averred in order to enable the Judges to give a decision upon it. The appellant adduced no evidence as to the law of England, and was therefore not in a position to press her objection before the Court of Session. On the other hand, this House, as the commune forum of the three countries, deals with such an objection as matter not of fact but of law, and gives its decision upon the legal issues raised without regard to evidence led in the Court below.
I am of opinion with your Lordships that the objection may be competently disposed of by the House. If the question had been one of fact we could not in the absence of proof have entertained it. I think, however, that as the case stands the appellant is not in a worse position than she would have occupied if she had brought forward evidence of English law, and had then failed to submit it to the judgment of the Courts below. That course was actually followed by the pursuer and appellant in the case of Longworth v. Yelverton, 4 Macq. 743, who not only pleaded that she was married to the defender according to one or other of three modes permitted by the law of Scotland, but averred and brought legal evidence to prove the constitution of a fourth marriage in Ireland according to the law of that country. The weight of the evidence being against her, she refrained from pleading upon it before the Scotch Courts, and in her appeal against their final judgment, which was unfavourable to her, she pressed the Irish marriage in argument for the first time. The Lord Chancellor (Westbury) observed—“The respondent also affirms on the record that a religious ceremony took place between the parties in Ireland, which amounted to a marriage if there was none before; but she was content in the Court below to have it assumed that this ceremony did not per se constitute a valid marriage, and having so submitted, it is not competent to her to maintain a different view of the case before this House as a Court of Appeal.” The language of the noble Lord very concisely states the substance of the respondents' argument in this appeal. But the other noble Lords present did not adopt the view of the Lord Chancellor, and Lords Wensleydale, Chelmsford, and Kingsdown entertained the question of the alleged Irish marriage, and gave judgment on its merits against the appellant. I need scarcely add that so far as concerns the matter of competency it is immaterial on which side judgment was given.
Whether the capacity of a minor to bind himself by personal contract ought to be determined by the law of his domicile or by the lex loci contractus has been a fertile subject of controversy. In the present case it is unnecessary to decide the point, because Ireland was the country of the appellant's domicile, and also the place where the contract was made. It was argued, however, for the respondents that the appellant's objection to the contract, although it rests upon her alleged incapacity to give consent, must be decided by the law of Scotland as the lex loci solutionis. I am by no means satisfied that Scotland was, in the proper sense of the phrase, the place of performance of the contract. The spouses no doubt intended to reside in Scotland, but they must also have intended that the contract should remain in force, and be performed in any other country where they might from choice or necessity take up their abode. Apart from that consideration, and assuming Scotland to have been in the strictest sense of the term the locus solutionis, I think the argument of the respondents is untenable. The principle of international private law, which makes in certain cases the law of the place where it is to be performed the legal test of the validity of a contract, rests in the first place upon the assumption that the parties were at the time when they contracted both capable of giving an effectual consent, and in the second place, upon an inference derived from the terms of the document or from the circumstances of the case, that they mutually agreed to be bound by the lex loci solutionis in all questions touching its validity. That principle can in my opinion have no application to a case in which, at the time when they professed to contract, one of the parties was, according to the law of that party's domicile, and also of the place of contracting, incapable of giving consent.
Being of opinion that the capacity of the appellant to bind herself by the marriage-contract must be determined by the law of England, I agree with your Lordships that the discharge which she seeks to set aside cannot stand in the way of her claiming her legal rights as a Scotch widow. The rule seems to be clear that an infant cannot during minority effectually subject herself to any contractual obligation which cannot be shown to have been for her benefit. She may ratify the contract after attaining majority, and so become liable to implement it, but in the
Page: 404↓
These considerations are sufficient for the disposal of the whole merits of this appeal. It is therefore unnecessary to determine whether the marriage-contract is reducible on the head of minority and lesion, which was the only question argued and decided in the Court of Session. All I shall say upon that point is, that had it been necessary to decide it I should as at present advised have hesitated to disturb the judgments of the Courts below. I think the appellant is greatly to blame for having kept back her leading ground of reduction until she appeared at your Lordships' bar, and that she ought not to have the costs incurred by her either in the Court of Session or in this appeal.
I accordingly concur in the judgment which has been moved by the Lord Chancellor.
Prima facie therefore Mrs Cooper was not bound by the settlement in question. Prima facie it was voidable by her, and she has elected to avoid it. It is not alleged that she has done any act to confirm it if it was not binding upon her at the time of its execution.
This was the main ground of appeal before this House.
Three answers were suggested on behalf of the respondents—In the first place, it was said that this was a Scotch marriage-contract, that the domicile of the intended husband was Scotch, and that Scotland was the place where the contract was to be fulfilled—that is, where the parties intended to reside after marriage. All that is very true; but it is difficult to see how it can affect the question.
It has been doubted whether the personal competency or incompetency of an individual to contract depends on the law of the place where the contract is made, or on the law of the place where the contracting party is domiciled. Perhaps in this country the question is not finally settled, though the preponderance of opinion here, as well as abroad, seems to be in favour of the law of the domicile. It may be that all cases are not to be governed by one and the same rule. But when the contract is made in the place where the person whose capacity is in question is domiciled there can be no room for dispute. It is difficult to suppose that the infant could confer capacity on herself by contemplating a different country as the place where the contract was to be fulfilled, if that be the proper expression in a case like this, or by contracting in view of an alteration of personal status which would bring with it a change of domicile.
In the next place, it was argued, though somewhat faintly, that the contract ought to be held binding on Mrs Cooper by analogy to those cases where, before the Dower Act, a reasonable provision, though not amounting to a bar to dower under the statute of Henry VIII., was held to be a bar in equity. This seems to be a very refined argument. Moreover, the foundation for it seems to be wanting. Undoubtedly, even in the case of an infant, a reasonable provision by antenuptial contract was held to be an equitable bar to dower Considering the way in which the authority of Drury v. Drury (2 Ed.) was shaken or circumscribed by the observations of Lord Thurlow and Lord Eldon, and considering the reasoning of Turner, L.J., in Field v. Moon (7 D. M. & G.), it is somewhat difficult to ascertain the precise grounds on which in the case of infants that doctrine rested. No case was cited to your Lordships, nor am I aware of any, in which the doctrine was recognised where the father or guardian of the infant did not concur in the contract. “A female infant,” says Sir John Leach in Sunson v. Jones ( 2 R. & M. 377), “is bound by the settlement made on her marriage as to dower and thirds, not by force of her agreement in the settlement, but by reason of the consent of her parents and guardians, and of the statute of Henry VIII.” Here the father of the infant was dead, and it is admitted that she had no legal guardian.
The third answer on the part of the respondents seems at first sight more formidable. It was said that the point was not argued before the Lord Ordinary or in the Court of Session, and that the appellant has deliberately excluded the
Page: 405↓
The interlocutor of the 31st of May 1884, whether it be now appealable or not, does not, I think, present any difficulty. The interlocutor itself does not touch the question. There are expressions in the opinion of the Lord Ordinary which, taken apart from the context, seem to be unfavourable to the view now presented by the appellant. But the opinion was directed to a wholly different point. Proceeding on an erroneous assumption of what the law of Ireland was the defenders pleaded that the law of Ireland was a bar to the pursuer's remedy in a Scotch Court. And to that the opinion of the Lord Ordinary was addressed.
Upon these grounds, without expressing any opinion on the reasons upon which the decisions of the Lord Ordinary and the Court of Session are founded, I concur in the conclusion that the appeal ought to be allowed, and I agree as to costs.
Interlocutor of the Lord Ordinary of the 31st July 1884, and also the interlocutor of the Second Division of the 9th January 1885, and of the Lord Ordinary of the 31st January 1885, so far as the said interlocutors were appealed from, reversed, and cause remitted with the declaration that the appellant was not barred by the marriage-contract sought to be reduced from electing to take her legal rights as the widow of the deceased Henry Ritchie Cooper; no costs to either party in the House of Lords or in the Court of Session.
Counsel for the Appellant— Rigby, Q.C.— Salvesen— W. F. Hamilton. Agent — Andrew Beveridge, for H. B. & F. J. Dewar, W.S.
Counsel for the Respondents— Sol.-Gen. Robertson— E. W. Byrne. Agents— Grahames, Currey, & Spens, for Webster, Will, & Ritchie, S.S.C.