120. Kosters-Dubbink, , 495, 501Google Scholar; Asser-Anema-Verdam, , 60Google Scholar; Offerhaus, , 26Google Scholar; but cf. Mulder, , 228.Google Scholar

121. See p. 376, infra.

122. See part I, p. 299, supra.

123. See part. I, p. 300, supra.

124. 1957 Schip en Schade, nr. 56; as in the Netherlands cases are not cited by the names of the parties, but by the date of the decision, the names of the parties in Dutch cases are omitted in this paper.

125. See also: Ct. App. Amsterdam, November 12, 1952, N.J. 1954, nr. 370 and Ct. App. Amsterdam April 15, 1955, N.J. 1955, nr. 492.

126. Ct. App. Amsterdam, October 24, 1946, N.J. 1947, nr. 229.

127. Dist. Ct. Rotterdam, June 8, 1955, N.J. 1956, nr. 351.

128. Cantonal Ct. The Hague, April 29, 1963, N.J. 1963, nr. 238.

129. N.J. 1957, nr. 571.

130. Dist. Ct. Rotterdam, June 24, 1949, N.J. 1950, nr. 538.

131. 233 Mass. 600, 124 N.E. 477 (Sup. Jud. Ct. 1919).

132. 252 N.Y. 127, 169 N.E. 112, 68 A.L.R. 801 (Ct. App. 1929).

133. Gerhard v. Terminal R.R. Ass'n of St. Louis, 229 S.W. 2d 866 (Mo. 1957) and O'Leary v. Illinois Terminal R.R., 299 S.W.2d 873 (Mo. 1957); see 23 Mo. L.Rev. 361 (1958).

134. See for other cases 15 C.J.S. 955.

135. Morgan, , Choice of Law, 180Google Scholar; Sedler, , 855–856Google Scholar; Stumberg, , 155.Google Scholar

136. Sedler, , 855–858Google Scholar; he says (at 858) that Palmer v. Hofmann, 318 U.S. 208 (1939)Google Scholar and Guaranty Trust Co. v. York 318 U.S. 109 (1943)Google Scholar have settled that the burden of persuasion is a matter of substance for Erie purposes and that that classification should be followed in conflicts cases.

137. Choice of Law, 190–191Google Scholar, repeated in Basic Problems, 30.Google Scholar

138. Stumberg follows Morgan's approach; see at 155–156.

139. At 355.

140. For example, a party leaves a question unanswered; see part I, p. 299, note 53, supra.

141. A rule, for example, which places the burden of proof on the holder of a bill of lading.

142. See e.g. the succession example set forth in part I, at p. 311, supra.

143. 9 Wigmore, , 270–286.Google Scholar

144. It may turn out though, that there, usually, is no fixed rule on the burden of producing evidence or that such a rule is based on a litigational event, so that the burden of producing evidence would, in practice, more often than the burden of persuasion be governed by the lex fori.

145. 9 Wigmore, , 275Google Scholar; see Asser-Anema-Verdam, , 86Google Scholar; circumstances such as whether an allegation is affirmative or negative or whether a fact is particularly within the knowledge of a party are especially taken into consideration.

146. But see Pohle, Zur Beweislast im internationalen Recht, 2 Vom Deutschen zum Europäischen Recht, 326–327 (1963).

147. Asser-Anema-Verdam, , 278–279Google Scholar; Pitlo, , 96–101.Google Scholar

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149. N.J. 1956, nr. 422.

150. N.J. 1951, nr. 412.

151. For other cases, see Kosters-Dubbink, , 533.Google Scholar

152. At 235.

153. At 124.

154. At 533–534.

155. 9 Wigmore, , 289.Google Scholar

156. 9 Wigmore, , 288Google Scholar; cf. Shain, , Presumptions under the Common and the Civil Law, 18 So. Cal. L. Rev. 91–109 (1944)Google Scholar, who points out that prior to the Thayer-Wigmore doctrine on the burden of proof the Common Law of presumptions was not very different from the Civil Law. Shain says that the Thayer-Wigmore doctrine is responsible for the confusion in the Common Law of presumptions.

157. Basic Problems, 34–36.Google Scholar

158. Basic Problems, 43Google Scholar; see also Choice of Law, 192–193.Google Scholar

159. At 156.

160. At 355.

161. See p. 376, supra

162. II, 286.

163. At 859–865.

164. Sedler mentions as examples, the presumptions that an injury to an employee is caused by the employer, that violation of a speeding regulation constitutes negligence, the presumption against suicide, the presumption of payment and the res ipsa loquitur rule.

165. §§ 599C and 599d.

166. See Stumberg, , 136Google Scholar; Ehrenzweig, , 355.Google Scholar

167. 192 F. 2d 217 (2d Cir. 1951).

168. See p. 375, supra.

169. 371 Pa. 1, 89 A. 2d 313 (Sup. Ct. 1952).

170. See for other cases 15 C.J.S. 955.

171. 89 F. 2d 528 (5th Cir. 1937).

172. At 530.

173. 236 F. 2d 457 (5th Cir. 1956).

174. At 462: In Alabama the presumption is evidential and does not spend its force “until the evidence is sufficient in the judgment of the jury to overcome it.” In South Carolina the presumption does not have the force and effect of evidence but is an administrative rule of law operating to require the production of credible evidence of self-destruction, after which the presumption disappears.

175. At 462.

176. Continued “Substance-Procedure” Confusion, 8 Syr. L. Rev. 281–286 (1957)Google Scholar argues against use of the substance-procedure dichotomy in life insurance cases and pleads for application ofthat law, with which there are contacts, which gives the greatest chance of recovery to the beneficiary. For other cases, see 15 C.J.S. 955.

177. For argumentation, see p. 376–377, supra.

178. See p. 377, supra.

179. For example, where the presumption is of the Rodney v. Staman type, see p. 379, supra.

180. See p. 379, supra.

181. See note 10, part I, p. 294, supra.

182. Asser-Anema-Verdam, , 250Google Scholar; see also Pitlo, , 82.Google Scholar

183. E.g., 205 B.W., 268 W.v.K.

184. E.g., 1888 B.W., 100 W.v.K.

185. A difference could be, that if written procf of the transaction had been lost, oral testimony as to its existence would be allowed in the first case, but not in the second case. This is the argument Asser-Anema-Verdam makes at 250. Though I can cite no supporting authority, it seems that also in case of a rule phrased as an exclusion, a court would allow oral testimony to prove that a document had existed but was lost without fault.

186. Asser-Anema-Verdam, , 60–61Google Scholar; Mulder, , 234.Google Scholar

187. See part I, p. 301, supra.

188. Mulder, , 37–39Google Scholar; Kosters-Dubbink, , 457Google Scholar; Van Brakel, , Grondslagen en begin-selen van het Nederlands Internationaal Privaatrecht, 171–172 (3d ed. 1953)Google Scholar; but cf. Offerhaus, , 47.Google Scholar

189. Kosters-Dubbink, , 522–523Google Scholar; Offerhaus, , 98–102.Google Scholar

190. Dist. Ct. The Hague, April 20, 1926, N.J. 1927, 1546; see for other cases Kosters-Dubbink, , 522.Google Scholar

191. Kosters-Dubbink, , 522–523Google Scholar: Offerhaus, , 97Google Scholar; Mulder, , 234Google Scholar; Dist. Ct. Rotterdam, October 13, 1914, N.J. 1914, 1312, W. 9838.

192. The Statute is dealt with in treatises on contracts and not in several treatises on evidence (Mc Cormick, Morgan, Basic Problems); Sedler says at 854: “It is well established that the requirement of the statute of frauds is not a rule of evidence.”; but see 1 Wigmore, , 163Google Scholar, where it is stated that some sections contain rules of evidence, others rules of substantive law and in the Restatement Second, the Statute is dealt with in a section on evidence.

193. 9 Wigmore, , 3–4Google Scholar; Morgan, (Basic Problems, 399)Google Scholar says that the Wigmore view has been followed by the Restatement and decisions “now overwhelmingly in accord”; 3 Corbin, , Contracts, 357–370 (1960)Google Scholar. At 365 Corbin writes however “Cases are very numerous that state the rule in traditional fashion as a “rule of evidence.””

194. 9 Wigmore, , Evidence, 3 (1940)Google Scholar, on the parol evidence rule.

195. 12 C.B. 801, 138 Eng. Rep. 1119 (1852).

196. See Comment, 14 U. Det. L. J. 198, 199 (1951)Google Scholar and Comment, 43 Calif. L. Rev. 295, 299 (1955).Google Scholar

197. Comment, U. Det. L. J., supra, 200Google Scholar; Comment, Calif. L. Rev., supra, 301.Google Scholar

198. Sedler, , 852.Google Scholar

199. At 473.

200. At 474.

201. At 472; see also Comment, Calif. L. Rev., supra, 297–308.Google Scholar

202. Comment, Calif. L. Rev., supra, 307Google Scholar, states the same rule, but adds the qualification “unless a strong policy of the forum compels such a result.” It says that the rule, thus qualified, was applied in the leading case Rubin v. Irving Trust Co., 305 N.Y. 288, 113 N.E. 2d 424 (Ct. App. 1953)Google Scholar. Notice that the Benelux Convention adopts also a rule of validation; see part I, p. 301, supra.

203. II, 504.

204. At 855.

205. At 155.

206. 1 Wigmore, , 163.Google Scholar

207. See for cases also 15 C.J.S. 954; and Bernkrant v. Fowler, 55 Cal. 2d 588, 360 P. 2d 906, 12 Cal. Rptr. 266 (1961).Google Scholar

208. At 140.

209. At 495.

210. At 495, note 18.

211. 128 F.2d 653, (3d Cir. 1942), 141 A.L.R. 1041, 1046–1048.

212. At 854.

213. Baxter v. Nat'l Bank, 154 Mass. 213, 28 N.E. 163 (Sup. Jud. Ct. 1891).Google Scholar

214. Kirtley v. Abrams, 299 F.2d 341 (2d Cir. 1962)Google Scholar. The Court applied the parol evidence rule of the state it was sitting in and the case is thus authority for the rule that the parol evidence rule is substantive for Erie purposes. Since the lex causae coincided with the law of the state in which the court was sitting, the case does not provide a decisive conflict, nor subsequently strong authority either way.

215. II, 505. Also 1 Wigmore, , 162Google Scholar and the Restatement, § 599, consider the lex causae determinative.

216. See 1 Rabel, , 239–240Google Scholar; 2 Rabel, , 519Google Scholar; 3 Rabel, 108–109, 401–403Google Scholar; 4 Rabel, , 46, 158Google Scholar; Stumberg, , 243–245, 281Google Scholar; but see Ehrenzweig, , 379–380, 660, 666–667 and at 471Google Scholar, note 1, where he remarks that he limits the discussion of contractual form requirements to the Statute of Frauds since other from requirements have hardly occupied the courts.

217. Art. 319 B.W., for example, prescribes that proof of descent is only possible by documents.

218. Art. 1947 B.W. par. 1; par. 2. states that the first paragraph does not apply in lawsuits on personal status of the parties, adoption, maintenance, parental authority and labor contracts; par. 3. states that the persons mentioned in par. 1. are not incompetent to testify on events which occurred during a voyage on the seas, but then have a privilege not to testify. Art. 31 Wegenverkeerswet (Road Traffic Act) par. 8, contains another exception.

219. N.J. 1926, 672.

220. Mulder, , 234–235Google Scholar; Offerhaus, , 110–112Google Scholar; but cf. Kosters-Dubbink, , 528Google Scholar, who, after hesitation prefers the lex causae; Asser-Anema-Verdam, , 62Google Scholar favors the lex fori.

221. The statutes are remnants of the old Common Law rule which disqualified the parties completely. Cormick, Mc, 142–144Google Scholar; Morgan, , Basic Problems, 92–94.Google Scholar

222. Cormick, Mc, 144Google Scholar; Morgan, , Basic Problems, 95Google Scholar; 2 Wigmore, , 730–731.Google Scholar

223. 2 Wigmore, , 588, 597, 728–729Google Scholar; Morgan, , Basic Problems, 86, 89Google Scholar and Choice of Law, 194Google Scholar; Cormick, Mc, 140.Google Scholar

224. Stumberg, , 140Google Scholar; Restatement, § 596.

225. 234 P.2d 673 (Dist. Ct. App. Cal. 1951).

226. For other cases see 97 C.J.S. 439.

227. At 871.

228. The argument could be made in case of an attested deed.

229. A.o. physicians, clergymen and attorneys; see Asser-Anema-Verdam, , 271–272.Google Scholar

How different the state of the law as to privileges for confidential communications is in some countries, is shown by Hammelman, Professional Privilege, A Comparison, 28 Can. B. Rev. 750–758 (1950)Google Scholar. In England and Canada there is no firmly established privilege of the clergyman and the physician. In Germany the privilege of the physician is waived if the patient does not object to the testimony, while in France such action does not waive the privilege. To this survey can be added that in The Netherlands none of the privileges is waived by consent of the confiding person. The privileges are deemed to exist not only for the benefit of the confiding person, but also in the interest of the public in general. See Asser-Anema-Verdam, , 272Google Scholar; Pitlo, , 91.Google Scholar

230. Mulder, , 234–235Google Scholar; Offerhaus, , 114Google Scholar; Asser-Anema-Verdam, , 62.Google Scholar

231. N.J. 1939, nr. 122.

232. At 528–531.

233. See 8 Wigmore, , 531–580Google Scholar; Cormick, Mc, 168–221, 252–288Google Scholar; Morgan, , Basic Problems, 100–181.Google Scholar

234. 138 F. 705 (3d Cir. 1905).

235. 10 N.J. Super. 287, 77 A.2d 291 (1950).

236. 111 F. Supp. 435 (Dist.Ct. D.C. 1953), aff'd 225 F.2d 532 (D.C. Cir. 1955), see commentary in 2 Am. J. Comp. L. 536 (1953).

237. 1 Misc. 2d 697, 148 N.Y.S.2d 731 (Sup. Ct. 1956).

238. 56 N.Y.S.2d 32 (Sup. Ct. 1956).

239. See for other cases 97 C.J.S. 741.

240. Recognition in the United States of the privileges of another jurisdiction, 56 Col. L. Rev. 535, 548–549 (1956).Google Scholar

241. At 356.

242. At 870–871.

243. See comment e. on § 599b.

244. See p. 386, supra.

245. In this and the preceding section I have based the difference between competency rules and privileges on the distinction that the first are designed to further discovery of the truth, whereas the latter obstruct discovery of the truth in favor of a countervailing policy. This is a view Mc Cormick for example holds (at 152), but which is not universally accepted. See Barnhart, Theory of Testimonial Capacity and Privilege, 4 Ark. L. Rev., 377, 377 (1950), who says that besides privileges, competency rules also are not primarily set up to further discovery of the truth. Almost all the incompetencies he enumerates, however, seem to be established with that end in view.

246. In this sense the word “instrument” is further used in this paper.

247. Pre-eminently the official is the notary, who is a lawyer and has a more important position than the Anglo-Saxon notary public.

248. See arts. 176–195 Code of Civil Procedure. Several intricate formalities tend to prevent ample use of the action. Oaths (see p. 396 infra) and “presumptions of fact” (see p. 377, supra) are not admissible in the proceeding. The court usually appoints three graphological experts and follows their opinion.

249. See note 3, part I, supra.

250. Arts. 1907 and 1912 B.W.; see for who are meant by “privies”, Asser-Anema-Verdam, , 154–155.Google Scholar

251. See note 3, part I, p. 294, supra.

252. Kosters-Dubbink, , 503.Google Scholar

253. Legalisation has been, but is not any more, a general condition for admissibility of these documents.

254. N.J. 1955, nr. 52.

255. This happened in the unreported case Offerhaus cites at 59, where an instrument executed by a German notary was involved.

256. See Kosters-Dubbink, , 480–481.Google Scholar

257. Mulder, , 231–232.Google Scholar

258. Kosters-Dubbink, , 503, 515Google Scholar; Offerhaus, , 47Google Scholar; Benelux Convention, see part I, p. 301, supraGoogle Scholar; Mulder, , 231Google Scholar, but cf. 232; Sup. Ct. June 22, 1928, N.J. 1928, 1486; Dist. Ct. Rotterdam Jan. 29, 1952, N.J. 1952, nr. 175; for other cases, see Kosters-Dubbink, , 503–505 and 510–515.Google Scholar

259. Kosters-Dubbink, , 494Google Scholar; Mulder, , 231Google Scholar; Offerhaus, , 34Google Scholar, but see Dist. Ct. Rotterdam June 24, 1914, N.J. 1915, 362, W. 9727.

260. See note 248, p. 389, supra.

261. The inquiry is also necessary where a provision like art. 992 B.W. specifically denies validity to an instrument which does not have the form of a Dutch authentic instrument.

262. See Mulder, , 230.Google Scholar

263. At 496–498.

264. Kosters-Dubbink, , 519–520Google Scholar; Mulder, , 233–234.Google Scholar

265. At 227–229.

266. See Cormick, Mc, 614Google Scholar; 5 Wigmore, , 513–524.Google Scholar

267. 7 Wigmore, , 570Google Scholar; Cormick, Mc, 395–396Google Scholar. Proof is required irrespective of whether the document is private or public.

268. See Cormick, Mc, 398–400.Google Scholar

269. 7 Wigmore, , 580–581.Google Scholar

270. Cormick, Mc, 400Google Scholar; 32 C.J.S. 652, 654.

271. 7 Wigmore, , 581Google Scholar; Cormick, Mc, 401–403.Google Scholar

272. 7 Wigmore, , 611–612Google Scholar; Cormick, Mc, 404–405.Google Scholar

273. 32 C.J.S. 649.

274. See Cormick, Mc, 397.Google Scholar

275. Cormick, Mc, 615–616Google Scholar, shows that the rule is relaxed; 32 C.J.S. 490.

276. 5 Wigmore, , 394Google Scholar; Cormick, Mc, 597–598Google Scholar; 32 C.J.S. 553.

277. Cormick, Mc., 409Google Scholar; 32 C.J.S., 706. The same rule, though less elaborated, is in force in the Netherlands. See Asser-Anema-Verdam, , 214–219Google Scholar; Pitlo, , 78.Google Scholar

278. 32 C.J.S. 679, 684. Compare the Dutch rules, p. 389, supra, which accord complete probative value to instruments and free probative value to documents-non-instruments.

279. This is not intended to be a complete survey of the American common law rules of documentary evidence and certainly does not cover the statutes that modify them, but it attempts to cover the most important and to indicate that the American rules are much more elaborate than the Dutch rules of documentary evidence.

280. Rule 44, F.R.C.P., for example.

281. But see Oligan v. Lublin, 50 N.E. 2d 264 (Ct. App. Ohio, 1943)Google Scholar where Yugoslavian copies of a family tree and a marriage certificate were not admitted in evidence though they were legalized by the U.S. consul in Yugoslavia. The court's ground for exclusion was that because the consul was not the keeper of the records his statement was without relevance.

282. 32 C.J.S. 547.

283. 32 C.J.S. 548.

284. 118 Wis. 18, 94 N.W. 664 (Sup. Ct. 1903). For other cases see 17 C.J.S. 626 and 10 C.J.S. 491.

285. 194 Misc. 261, 86 N.Y.S. 2d 720 (Sup. Ct. 1949). In order to prevent undesirable decisions like this one, statutes have been enacted in 1949 both in New York and in the Netherlands. See Kollewijn, , American-Dutch Private International law, 62–63 (2d ed., 1961).Google Scholar

286. The court noted that the Red Cross was not under a public duty to keep death records; cf. note 275, p. 392, supra and accompanying text.

287. 252 Mich. 674, 234 N.W. 135 (Sup. Ct. 1931).

288. 133 N.J.Eq. 77 (Ct. of Ch. 1943).

289. 125 N.J.L. 7 (Sup. Ct. 1940).

290. The first case concerned a New York death and birth record, the second a New York motor vehicle record.

291. See part. I, p. 302, supra.

292. Cf. Opton v. Guaranty Trust Co. of N.Y., cited p. 392–393Google Scholar, supra.

293. A literal translation of the Dutch term is “confession”.

294. Arts. 1962–1965 B.W.

295. Asser-Anema-Verdam, , 400–404Google Scholar; Pitlo, , 118–120.Google Scholar

296. Pitlo, , 119–120Google Scholar, notes that the courts are forced into this practice by the slowness of the legislature to adapt the law to the commonly held opinion that divorce by mutual consent should be allowed.

297. Asser-Anema-Verdam, , 418–419Google Scholar; Pitlo, , 120–126.Google Scholar

298. See Pitlo, , 127.Google Scholar

299. At 534–535.

300. At 164, 169, 172 and 174.

301. At 236.

302. In most Western-European countries the principle of art. 1961 B.W. has not the same strength as it has in the Netherlands and the rules of withdrawal and admissibility of judicial admissions are different. Even thus within Western European relations, the choice of law question is not academic. See Kosters-Dubbink, , 534–535Google Scholar; Offerhaus, , 163, 166 and 171.Google Scholar

303. 9 Wigmore, , 587–588Google Scholar; Cormick, Mc, 508.Google Scholar

304. 4 Wigmore, , 21Google Scholar; Cormick, Mc, 504.Google Scholar

305. Cormick, Mc, 234.Google Scholar

306. See Wigmore, , §§ 822–826.Google Scholar

307. 9 Wigmore, , 601Google Scholar; Cormick, Mc, 514.Google Scholar

308. 7 Wigmore, , 386, 392Google Scholar; 4 Wigmore, , 16–17.Google Scholar

309. According to §§ 597 and 598 of the Restatement the lex fori applies.

310. Arts. 237–246 Code of Civil Procedure.

311. Arts. 19 and 19a Code of Civil Procedure.

312. Arts. 1967–1976 B.W.

313. This consequence is much criticized. It is said that someone may be convinced of the truth of a statement but still be aware that he might be mistaken and therefore not be willing to make his statement under oath. He should not be punished for his scrupulousness. See Asser-Anema-Verdam, , 462Google Scholar; Pitlo, , 155.Google Scholar

314. This extreme unassailibility is often criticized. See Asser-Anema-Verdam, , 459Google Scholar; but cf. Pitlo, , 153.Google Scholar

315. In this way case law has interpreted the obscure art. 1967 B.W.

316. Arts. 1977–1978 B.W.

317. See Asser-Anema-Verdam, , 477.Google Scholar

318. See Pitlo, , 158.Google Scholar

319. Art. 1979 B.W.

320. At 537–539.

321. At 186, 193.

322. At 236.

323. When the rule that a party may not impeach his own witness is also applied if the adverse party is called to the stand, the first party may be bound by the other's testimony in a way not unlike that in which the Dutch charging party is bound by the decisive oath of the charged party. But see 3 Wigmore, , 431Google Scholar and Cormick, Mc, 71Google Scholar, who criticize application of the rule in the adverse party situation.

324. See p. 386, supra.

325. Asser-Anema-Verdam, , 499.Google Scholar

326. Offerhaus, , 212.Google Scholar

327. Asser-Anema-Verdam, , 48, 492Google Scholar; Pitlo, , 21.Google Scholar

328. Offerhaus, , 212–213Google Scholar; Kosters-Dubbink, , 494.Google Scholar

329. The Uniform Rules of Evidence seem to place expert testimony more within the discretion of the court; see Cormick, Mc, 35–36.Google Scholar

330. 2 Wigmore, , 643Google Scholar; Cormick, Mc, 28.Google Scholar

331. Asser-Anema-Verdam, , 59Google Scholar. The quoted reference is, most likely to personal status cases. Cf. p. 394 and p. 396, supra. But see Dist. Ct. 's-Hertogenbosch, December 28, 1962, N.J. 1963, 294, which respected an evidence agreement in a paternity suit. The court left unclear however, whether in the absence of the agreement other rules would have applied.

332. Asser-Anema-Verdam, , 58–60Google Scholar; Pitlo, , 26–28, 37Google Scholar. Mulder notes at 230 that all rules of evidence are imperative rules, but it is generally held that few of the rules of Part IV B.W. are imperative; See Pitlo, , 26–27.Google Scholar

333. 1 Wigmore, , 214.Google Scholar

334. 1 Wigmore, , 223–231.Google Scholar

335. 1 Wigmore, , 1962 Pocket Supplement, 58.Google Scholar

336. Stumberg, , 234–236Google Scholar; Ehrenzweig, , 467–470Google Scholar; 2 Rabel, , 376–380Google Scholar; Rest. Second Tent. Draft No. 6, §. 332a (1960).

337. Yntema, , “Autonomy” in Choice of Law, 341, 349, 1 Am. J. Comp. L. (1952).Google Scholar

338. At 486–489.

339. 6A Corbin, , Contracts, 486 (1962)Google Scholar: a choice of law by the parties is enforced to the extent that the contract before the court would be recognized as valid by the law of the forum if, without specifying the law of any jurisdiction it had provided in express terms for the exact results that would be reached by application of the law of the specified jurisdiction.

340. From Ehrenzweig's remarks on the German marriage brokerage contract case he cites at 469, note 7, it seems to follow that he thinks deviation from the lex causae's imperative rules permitted.

341. 2 Rabel, , 430.Google Scholar

342. 2 Rabel, , 426–429, 431Google Scholar; see also the conclusion of Comment, “Party-Autonomy” in Contracts, 57 Col. L. Rev. 553, 576 (1957).Google Scholar

343. Ehrenzweig, , 537–539Google Scholar, discusses some procedural agreements as the agreement to confess judgment, or not to sue, but does not mention evidence agreements.

344. Cf. Levy et al. v. Mutual Life Ins. Co., note 238, supra.Google Scholar

345. See p. 399, supra.

346. At least in so far as the hearsay rule pertains to oral testimony. See the exceptions to the hearsay rule concerning records, p. 392, supra.

See for a comparison between Civil Law and Common Law hearsay rules Hammelman, Hearsay Evidence, a Comparison, 67 L.Q. Rev. 67 (1951).

347. But see Kosters-Dubbink, , 532.Google Scholar

348. See 7 Wigmore, 379–382; art. 1942 B.W.

349. See Offerhaus, , 105–107Google Scholar; Mulder, , 235Google Scholar; Kosters-Dubbink, , 525.Google Scholar

350. The fact that the Dutch law of evidence is for the greater part treated in the Civil Code which made Dutch lawyers aware of the strong relation between the law of evidence and substantive law; (In the new Civil Code which is being drafted, however, evidence will not occur. It will be transferred to the Code of Civil Procedure). Another circumstance is that the laws of the Netherlands' neighbour states are far more laid down in statutes than the laws of the American States and that it is much easier to apply foreign statutory law than foreign court made law. (Cf. Morgan, , Choice of Law, 190–191Google Scholar, referred to at p. 376, supra).

351. Cf. part. I, p. 296–297, supra.

352. See primarily the public duty argument, p. 305–306. supra.

353. Cavers, , The Choice of Law Process, 268–289 (1965).Google Scholar