Contractual Capacity in Private International Law: The Lizardi Rule in the Far East
Authors Eesa Allie Fredericks
Affiliations: Senior Lecturer, Head of Department: Practical Business Law, Deputy Director: Research Centre for Private International Law in Emerging Countries, University of Johannesburg
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 1, p. 116 – 134
This article concerns the contractual capacity of natural persons in the conflict-of-law rules in various Far Eastern jurisdictions. In particular, attention is devoted to the so-called Lizardi rule, which is based on a decision of the French Cour de cassation in 1861. The rule provides certain conditions for the application of the law of the place of contracting in addition to the relevant personal law(s). The Lizardi rule, in amended form, became part of European regional and supranational private international law. The influence of the rule is traced in the conflicts codes in force in China, Japan, Macau, Mongolia, the Philippines, South Korea, Taiwan, Thailand and Vietnam. The various arrangements in these codes are compared to the original formulation of the rule in the Lizardi case, and with its amended form in the Rome Convention and the Rome I Regulation on the Law Applicable to Contractual Obligations. The author submits that the arrangement in the South Korean Conflict of Laws Act is the most preferable in this regard, as it constitutes a commendable via media between the interests of the incapacitated party and the capable contractant.