The Eclipse of the Lex Loci Solutionis -- A Fallacy Exploded

Traditionally, the question what law governs the validity of a contract is the most confused subject in the conflict of laws.\u27 At least four theories have been advocated by writers or adopted by courts, namely that the law of the place of contracting, or the law of the place of performance, or the law intended by the parties, or the law of the country with which the contract has the closest and most real connection, determines the validity of the contract. In England the validity of a contract is governed by the proper law, which Dicey defines as the law, or laws, by which the parties intended, or may fairly be presumed to have intended, the contract to be governed.\u27 The Restatement, on the other hand, prefers the theory that the validity of a contract is governed by the law of the place of contracting. The object of this paper is not to argue the merits of any of the above-mentioned theories, but to consider the following question: Assuming that the validity of the contract is not governed by the law of the place of performance (either as such, or because it is the law intended by the parties, or the law of the country with which the contract has the closest and most real connection), are there any matters which should be governed by the law of the place of performance, that is, by a different law from that which governs the validity of the contract itself