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Choice of Law for Void Contracts and Their Restitutionary Aftermath: the Putative Governing Law of the Contract

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Chapter Summary

This chapter examines issues surrounding the concept of the putative governing law of the contract by studying its role in establishing a void contract and personal unjust enrichment claims arising in the aftermath of voidness. Questions arising from a contract, such as whether the parties have fulfilled their mutual obligations, or the interpretation of certain terms used in the contract, are referred to the governing law of the contract. It is clear that the putative governing law needs to be accorded some role in any solution which prizes pragmatism and certainty in determining voidness. The three possible laws are the objectively determined governing law of the contract, the lexlocus transactionis and the lex fori. The lex fori is the law that is best suited to play this neutral role: its role can be justified logically and jurisprudentially as well as for the reasons of justice between the parties and expediency.

Keywords: lex fori; lexlocus transactionis; personal unjust enrichment claims; putative governing law



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