Lilienthal v. Kaufman

O’CONNELL, J.,

specially concurring.

In my dissent in Olshen v. Kaufman, 235 Or 423, 385 P2d 161 (1963) I expressed the view that ORS 126.335 should be construed to permit a creditor to recover from a spendthrift under the circumstances of that case. A majority of the court felt otherwise.

Although I disagree with the rationale in that case, I must now accept it to the extent that it is applicable. I believe that it is applicable in the case before us and that its application forces us to choose the law of Oregon in preference to the law of California.

In the Olshen case we had to choose between two competing policies; on one hand the policy of protecting the interest of persons dealing with spendthrifts which, broadly, may be described as the interest in the security of transactions, and on the other hand the policy of protecting the interests of the spendthrift, his family and the county. It was decided that the" Oregon Legislature adopted the latter policy in preference to the former.

The case at bar involves the same choice even though the contract was made in California and it was to be performed there. The fact that California was the setting for the making and performance of the contract is of no significance except that it requires us to consider California’s interest in protecting its own citizens. That interest is an interest in the security of commercial transactions and was'before this court in the Olshen case. To distinguish the Olshen case it would be necessary to assume that although the legislature intended to protect -the interest of the spendthrift, his family and the county when loeaí creditors were harmed, the same protection was not intended where the transaction adversely affected foreign creditors. I see no basis for making that assumption. There is no reason to believe that our'legislature intended to protect California creditors to a greater extent than our own.