The consequences of contractual incapacity in private international law

Abstract

In this article, the issue of which legal system should govern the consequences of contractual incapacity is addressed, for instance, that a contract is void, voidable or unenforceable (or that it is valid only after ratification) and that restitution has to be made. Most legal systems do not specifically identify an applicable law in this regard. Exceptions are the position in Germany and Oregon and under a proposal for a Puerto Rican codification. Taking policy considerations, national models and related provisions in regional, supranational and international instruments into consideration, the author submits that the consequences of contractual incapacity should be governed by the putative objective proper law of the contract.