ABSTRACT

Where a dispute arises from the breach of a term or terms of a contract between

'A' a Nigerian and 'B' an Italian, the court which entertains the action will employ an objective test in order to determine the law to govern the resolution of this dispute. Before arriving at this law, the court considers the intention of the parties regarding their choice of law.

The parties' intention could be expressed where they provide that "Nigerian law shall govern the construction of this contract", or their intention could be implied where, from the terms of the contract, the court could hold that the parties' intention is that Italian law should govern the contract. Where their intention is neither expressed nor to be inferred from the terms of the contract, the court could hold that the system of law with which the transaction has its closest and most real connection shall be the proper law of the contract and this is arrived at by looking at the surrounding circumstances of the case.

The above explanation is what "Determining the Proper Law of Contract under Private International Law" is all about and it is that proper law so determined that

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CHAPTER ONE

1.0 GENERAL INTRODUCTION

1.1 INTRODUCTION

Business men and women, the world over, are continually entering into

agreements. It is therefore necessary to know which law should be

applied to govern these agreements, because every international

contract must be governed by a particular law, if not it is no longer a

contract which the court must enforce. Generally, the law of contract

has uniqueness of its own, in that it is the only branch of the law in

which broadly speaking parties are free to make their own choice of

law. The court will apply this law if it passes the objective test. The

courts follow a procedure in conducting this test; it is the result that

constitutes determining the proper law of contract. At first the

choice of law was fixed, rigid and arbitrary but as times went on, the

law became flexible, more reasonable and universally acceptable.

The Proper Law of Contract was defined in Coast Lines Ltd. v. Hudig

and Veder Chartering N.V.1 "as the system of law (e.g. Nigerian Law,