§ 528. The best means of securing treaties, and one which is still in use generally, is the guarantee of such other States as are not directly affected by the treaty. Such guarantee is a kind of accession[895] to the guaranteed treaty, and a treaty in itself—namely, the promise of the guarantor eventually to do what is in his power to compel the contracting party or parties to execute the treaty.[896] Guarantee of a treaty is a species only of guarantee in general, which will be discussed below, §§ 574-576a.

VIII PARTICIPATION OF THIRD STATES IN TREATIES

Hall, § 114—Wheaton, § 288—Hartmann, § 51—Heffter, § 88—Ullmann, § 81—Bonfils, Nos. 832-834—Despagnet, No. 448—Pradier-Fodéré, II. Nos. 1127-1150—Rivier, II. pp. 89-93—Calvo, III. §§ 1621-1626—Fiore, II. Nos. 1025-1031—Martens, I. § 111.

§ 529. Ordinarily a treaty creates rights and duties between the contracting parties exclusively. Nevertheless, third States may be interested in such treaties, for the common interests of the members of the Family of Nations are so interlaced that few treaties between single members can be concluded in which third States have not some kind of interest. But such interest, all-important as it may be, must not be confounded with participation of third States in treaties. Such participation can occur in five different forms—namely, good offices, mediation, intervention, accession, and adhesion.[897]

§ 530. A treaty may be concluded with the help of the good offices or through the mediation of a third State, whether these offices be asked for by the contracting parties or be exercised spontaneously by a third State. Such third State, however, does not necessarily, either through good offices or through mediation, become a real party to the treaty, although this might be the case. A great many of the most important treaties owe their existence to the good offices or mediation of third Powers. The difference between good offices and mediation will be discussed below, vol. II. § 9.

§ 531. A third State may participate in a treaty in such a way that it interposes dictatorially between two States negotiating a treaty and requests them to drop or to insert certain stipulations. Such intervention does not necessarily make the interfering State a real party to the treaty. Instances of threatened intervention of such a kind are the protest on the part of Great Britain against the preliminary peace treaty concluded in 1878 at San Stefano[898] between Russia and Turkey, and that on the part of Russia, Germany, and France in 1895 against the peace treaty of Shimonoseki[899] between Japan and China.

§ 532. Of accession there are two kinds. Accession means, firstly, the formal entrance of a third State into an existing treaty so that such State becomes a party to the treaty with all rights and duties arising therefrom. Such accession can take place only with the consent of the original contracting parties, and accession always constitutes a treaty of itself. Very often the contracting parties stipulate expressly that the treaty shall be open to the accession of a certain State. And the so-called law-making treaties, as the Declaration of Paris or the Geneva Convention for example, regularly stipulate the option of accession of all such States as have not been originally contracting parties.

But there is, secondly, another kind of accession possible. For a State may enter into a treaty between other States for the purpose of guarantee.[900] This kind of accession makes the acceding State also a party to the treaty; but the rights and duties of the acceding State are different from the rights and duties of the other parties, for the former is a guarantor only, whereas the latter are directly affected by the treaty.

§ 533. Adhesion is defined as such entrance of a third State into an existing treaty as takes place either with regard only to a part of the stipulations or with regard only to certain principles laid down in the treaty. Whereas through accession a third State becomes a party to the treaty with all the rights and duties arising from it, through adhesion a third State becomes a party only to such parts or principles of the treaty as it has adhered to. But it must be specially observed that the distinction between accession and adhesion is one made in theory, to which practice frequently does not correspond. Often treaties speak of accession of third States where in fact adhesion only is meant, and vice versa. Thus, article 6 of the Hague Convention with respect to the laws and customs of war on land stipulates the possibility of future adhesion of non-signatory Powers, although accession is meant.

IX EXPIRATION AND DISSOLUTION OF TREATIES

Vattel, II. §§ 198-205—Hall, § 116—Westlake, I. pp. 284-286—Lawrence, § 134—Halleck, I. pp. 293-296—Taylor, §§ 394-399—Wharton, II. § 137A—Wheaton, § 275—Moore, V. §§ 770-778—Bluntschli, §§ 450-461—Heffter, § 99—Ullmann, § 85—Bonfils, Nos. 855-860—Despagnet, Nos. 453-455—Pradier-Fodéré, II. Nos. 1200-1218—Mérignhac, II. p. 788—Rivier, II. § 55—Nys, III. pp. 48-53—Calvo, III. §§ 1662-1668—Fiore, II. Nos. 1047-1052—Martens, I. § 117—Jellinek, "Die rechtliche Natur der Staatenverträge" (1880), pp. 62-64—Nippold, op. cit. pp. 235-248—Olivi, "Sull' estinzione dei trattati internazionali" (1883)—Schmidt, "Ueber die völkerrechtliche clausula rebus sic stantibus, &c." (1907)—Kaufmann, "Das Wesen des Völkerrechts und die clausula rebus sic stantibus" (1911)—Bonucci in Z.V. IV. (1910), pp. 449-471.

§ 534. The binding force of treaties may terminate in four different ways, because a treaty may either expire, or be dissolved, or become void, or be cancelled.[901] The grounds of expiration of treaties are, first, expiration of the time for which a treaty was concluded, and, secondly, occurrence of a resolutive condition. Of grounds of dissolution of treaties there are three—namely, mutual consent, withdrawal by notice, and vital change of circumstances. In contradistinction to expiration and dissolution as well as to voidance and cancellation, performance of treaties does not terminate their binding force. A treaty whose obligation has been performed is as valid as before, although it is now of historical interest only.

§ 535. All such treaties as are concluded for a certain period of time only, expire with the expiration of such time, unless they are renewed or prolonged for another period. Such time-expiring treaties are frequently concluded, and no notice is necessary for their expirations, except when specially stipulated.

A treaty, however, may be concluded for a certain period of time only, but with the additional stipulation that the treaty shall after the lapse of such period be valid for another such period, unless one of the contracting parties gives notice in due time.

§ 536. Different from time-expiring treaties are such as are concluded under a resolutive condition, which means under the condition that they shall at once expire with the occurrence of certain circumstances. As soon as these circumstances arise, the treaties expire.

§ 537. A treaty, although concluded for ever or for a period of time which has not yet expired, may nevertheless always be dissolved by mutual consent of the contracting parties. Such mutual consent can become apparent in three different ways.

First, the parties can expressly and purposely declare that a treaty shall be dissolved; this is rescission. Or, secondly, they can conclude a new treaty concerning the same objects as those of a former treaty without any reference to the latter, although the two treaties are inconsistent with each other. This is substitution, and in such a case it is obvious that the treaty previously concluded was dissolved by tacit mutual consent. Or, thirdly, if the treaty is such as imposes obligations upon one of the contracting parties only, the other party can renounce its rights. Dissolution by renunciation is a case of dissolution by mutual consent, since acceptance of the renunciation is necessary.

§ 538. Treaties, provided they are not such as are concluded for ever, may also be dissolved by withdrawal, after notice by one of the parties. Many treaties stipulate expressly the possibility of such withdrawal, and as a rule contain details in regard to form and period in which notice is to be given for the purpose of withdrawal. But there are other treaties which, although they do not expressly stipulate the possibility of withdrawal, can nevertheless be dissolved after notice by one of the contracting parties. To that class belong all such treaties as are either not expressly concluded for ever or apparently not intended to set up an everlasting condition of things. Thus, for instance, a commercial treaty or a treaty of alliance not concluded for a fixed period only can always be dissolved after notice, although such notice be not expressly stipulated. Treaties, however, which are apparently intended, or expressly concluded, for the purpose of setting up an everlasting condition of things, and, further, treaties concluded for a certain period of time only, are as a rule not notifiable, although they can be dissolved by mutual consent of the contracting parties.

It must be emphasised that all treaties of peace and all boundary treaties belong to this class. It cannot be denied that history records many cases in which treaties of peace have not established an everlasting condition of things, since one or both of the contracting States took up arms again as soon as they recovered from the exhausting effect of the previous war. But this does not prove either that such treaties can be dissolved through giving notice, or that, at any rate as far as International Law is concerned, they are not intended to create an everlasting condition of things.

§ 539. Although, as just stated, treaties concluded for a certain period of time, and such treaties as are apparently intended or expressly contracted for the purpose of setting up an everlasting condition of things, cannot in principle be dissolved by withdrawal of one of the parties, there is an exception to this rule. For it is an almost universally recognised fact that vital changes of circumstances may be of such a kind as to justify a party in notifying an unnotifiable treaty. The vast majority of publicists, as well as all the Governments of the members of the Family of Nations, defend the principle Conventio omnis intelligitur rebus sic stantibus, and they agree,[902] therefore, that all treaties are concluded under the tacit condition rebus sic stantibus. That this condition involves a certain amount of danger cannot be denied, for it can be, and indeed sometimes has been, abused for the purpose of hiding the violation of treaties behind the shield of law, and of covering shameful wrong with the mantle of righteousness. But all this cannot alter the fact that this exceptional condition is as necessary for International law and international intercourse as the very rule pacta sunt servanda. When, for example, the existence or the necessary development of a State stands in unavoidable conflict with such State's treaty obligations, the latter must give way, for self-preservation and development in accordance with the growth and the necessary requirements of the nation are the primary duties of every State. No State would consent to any such treaty as would hinder it in the fulfilment of these primary duties. The consent of a State to a treaty presupposes a conviction that such treaty is not fraught with danger to its existence and development, and implies a condition that, if by an unforeseen change of circumstances the obligations stipulated in the treaty should imperil the said State's existence and necessary development, the treaty, although by its nature unnotifiable, should nevertheless be notifiable.

The danger of the clause rebus sic stantibus is to be found in the elastic meaning of the term "vital changes of circumstances," as, after all, a State must in every special case judge for itself whether or no there is a vital change of circumstances justifying its withdrawal from an unnotifiable treaty. On the other hand, the danger is counterbalanced by the fact that the frequent and unjustifiable use of the clause rebus sic stantibus by a State would certainly destroy all its credit among the nations.

Be that as it may, it is generally agreed that certainly not every change of circumstances justifies a State in making use of the clause. All agree that, although treaty obligations may through a change of circumstances become disagreeable, burdensome, and onerous, they must nevertheless be discharged. All agree, further, that a change of government and even a change in the form of a State, such as the turning of a monarchy into a republic and vice versa, does not alone and in itself justify a State in notifying such a treaty as is by its nature unnotifiable. On the other hand, all agree in regard to many cases in which the clause rebus sic stantibus could justly be made use of. Thus, for example, if a State enters into a treaty of alliance for a certain period of time, and if before the expiration of the alliance a change of circumstances occurs, so that now the alliance endangers the very existence of one of the contracting parties, all will agree that the clause rebus sic stantibus would justify such party in notifying the treaty of alliance.

A certain amount of disagreement as to the cases in which the clause might or might not be justly applied will of course always remain. But the fact is remarkable that during the nineteenth century not many cases of the application of the clause have occurred. And the States and public opinion everywhere have come to the conviction that the clause rebus sic stantibus ought not to give the right to a State at once to liberate itself from the obligations of a treaty, but only the claim to be released from these obligations by the other parties to the treaty. Accordingly, when a State is of the opinion that the obligations of a treaty have through a vital change of circumstances become unbearable, it should first approach the other party or parties and request them to abrogate the treaty. And it is only when such abrogation is refused that a State may perhaps be justified in declaring that it could no longer consider itself bound by the obligations concerned. Thus, when, in 1870, during the Franco-German War, Russia declared her withdrawal from such stipulations of the Treaty of Paris of 1856 as concerned the neutralisation of the Black Sea and the restriction imposed upon Russia in regard to men-of-war in that sea, Great Britain protested, and a conference was held in London in 1871. Although by a treaty signed on March 13, 1871, this conference, consisting of the signatory Powers of the Treaty of Paris—namely, Austria, England, France, Germany, Italy, Russia, and Turkey—complied with the wishes of Russia and abolished the neutralisation of the Black Sea, it adopted in a protocol[903] of January 17, 1871, the following declaration:—"Que c'est un principe essentiel du droit des gens qu'aucune Puissance ne peut se délier des engagements d'un traité, ni en modifier les stipulations, qu'à la suite de l'assentiment des parties contractantes, au moyen d'une entente amicale."

In spite of this declaration, signed also by herself, Russia in 1886 notified her withdrawal from article 59 of the Treaty of Berlin of 1878 stipulating the freedom of the port of Batoum.[904] The signatory Powers of the Treaty of Berlin seem to have tacitly consented, with the exception of Great Britain, which protested. Again, in October 1908, Austria-Hungary, in defiance of article 25 of the Treaty of Berlin, 1878, proclaimed her sovereignty over Bosnia and Herzegovina, which hitherto had been under her occupation and administration, and simultaneously Bulgaria, in defiance of article 1 of the same treaty, declared herself independent.[905] Thus the standard value of the Declaration of the Conference of London of 1871 has become doubtful again.

X VOIDANCE OF TREATIES

See the literature quoted at the commencement of § 534.

§ 540. A treaty, although it has neither expired nor been dissolved, may nevertheless lose its binding force by becoming void.[906] And such voidance may have different grounds—namely, extinction of one of the two contracting parties, impossibility of execution, realisation of the purpose of the treaty otherwise than by fulfilment, and, lastly, extinction of such object as was concerned in a treaty.

§ 541. All treaties concluded between two States become void through the extinction of one of the contracting parties, provided they do not devolve upon such State as succeeds to the extinct State. That some treaties devolve upon the successor has been shown above (§ 82), but many treaties do not. On this ground all political treaties, such as treaties of alliance, guarantee, neutrality, and the like, become void.

§ 542. All treaties whose execution becomes impossible subsequent to their conclusion are thus rendered void. A frequently quoted example is that of three States concluding a treaty of alliance and subsequent war breaking out between two of the contracting parties. In such case it is impossible for the third party to execute the treaty, and it becomes void.[907] It must, however, be added that the impossibility of execution may be temporary only, and that then the treaty is not void but merely suspended.

§ 543. All treaties whose purpose is realised otherwise than by fulfilment become void. For example, a treaty concluded by two States for the purpose of inducing a third State to undertake a certain obligation becomes void if the third State voluntarily undertakes the same obligation before the two contracting States have had an opportunity of approaching the third State with regard to the matter.

§ 544. All treaties whose obligations concern a certain object become void through the extinction of such object. Treaties, for example, concluded in regard to a certain island become void when such island disappears through the operation of nature, as likewise do treaties concerning a third State when such State merges in another.

XI CANCELLATION OF TREATIES

See the literature quoted at the commencement of § 534.

§ 545. A treaty, although it has neither expired, nor been dissolved, nor become void, may nevertheless lose its binding force by cancellation. The causes of cancellation are four—namely, inconsistency with International Law created subsequent to the conclusion of the treaty, violation by one of the contracting parties, subsequent change of status of one of them, and war.

§ 546. Just as treaties have no binding force when concluded with reference to an illegal object, so they lose their binding force when through a progressive development of International Law they become inconsistent with the latter. Through the abolition of privateering among the signatory Powers of the Declaration of Paris of 1856, for example, all treaties between any of these Powers based on privateering as a recognised institution of International Law were ipso facto cancelled.[908] But it must be emphasised that subsequent Municipal Law can certainly have no such influence upon existing treaties. On occasions, indeed, subsequent Municipal Law creates for a State a conflict between its treaty obligations and such law. In such case this State must endeavour to obtain a release by the other contracting party from these obligations.[909]

§ 547. Violation of a treaty by one of the contracting States does not ipso facto cancel such treaty, but it is in the discretion of the other party to cancel it on the ground of violation. There is no unanimity among writers on International Law in regard to this point, in so far as a minority makes a distinction between essential and non-essential stipulations of the treaty, and maintains that violation of essential stipulations only creates a right for the other party to cancel the treaty. But the majority of writers rightly oppose this distinction, maintaining that it is not always possible to distinguish essential from non-essential stipulations, that the binding force of a treaty protects non-essential stipulations as well as essential ones, and that it is for the faithful party to consider for itself whether violation of a treaty, even in its least essential parts, justifies the cancelling of the treaty. The case, however, is different when a treaty expressly stipulates that it should not be considered broken by violation of merely one or another part of it. And it must be emphasised that the right to cancel the treaty on the ground of its violation must be exercised within a reasonable time after the violation has become known. If the Power possessing such right does not exercise it in due time, it must be taken for granted that such right has been waived. A mere protest, such as the protest of England in 1886 when Russia withdrew from article 59 of the Treaty of Berlin of 1878, which stipulated the freedom of the port of Batoum, neither constitutes a cancellation nor reserves the right of cancellation.

§ 548. A cause which ipso facto cancels treaties is such subsequent change of status of one of the contracting States as transforms it into a dependency of another State. As everything depends upon the merits of each case, no general rule can be laid down as regards the question when such change of status must be considered to have taken place, or, further, as regards the other question as to the kind of treaties cancelled by such change.[910] Thus, for example, when a State becomes a member of a Federal State, it is obvious that all its treaties of alliance are ipso facto cancelled, for in a Federal State the power of making war rests with the Federal State, and not with the several members. And the same is valid as regards a hitherto full-Sovereign State which comes under the suzerainty of another State. On the other hand, a good many treaties retain their binding force in spite of such a change in the status of a State, all such treaties, namely, as concern matters in regard to which the State has not lost its sovereignty through the change. For instance, if the constitution of a Federal State stipulates that the matter of extradition remains fully in the competence of the member-States, all treaties of extradition of members concluded with third States previous to their becoming members of the Federal State retain their binding force.

§ 549. How far war is a general ground of cancellation of treaties is not quite settled. Details on this point will be given below, vol. II. § 99.

XII RENEWAL, RECONFIRMATION, AND REDINTEGRATION OF TREATIES

Vattel, II. § 199—Hall, § 117—Taylor, § 400—Hartmann, § 51—Ullmann, § 85—Bonfils, Nos. 851-854—Despagnet, No. 456—Pradier-Fodéré, II. Nos. 1191-1199—Rivier, II. pp. 143-146—Calvo, III. §§ 1637, 1666, 1669—Fiore, II. Nos. 1048-1049, and Code, Nos. 835-838.

§ 550. Renewal of treaties is the term for the prolongation of such treaties before their expiration as were concluded for a definite period of time only. Renewal can take place through a new treaty, and the old treaty may then be renewed as a body or in parts only. But the renewal can also take place automatically, many treaties concluded for a certain period stipulating expressly that they are considered renewed for another period in case neither of the contracting parties has given notice.

§ 551. Reconfirmation is the term for the express statement made in a new treaty that a certain previous treaty, whose validity has or might have become doubtful, is still, and remains, valid. Reconfirmation takes place after such changes of circumstances as might be considered to interfere with the validity of a treaty; for instance, after a war, as regards such treaties as have not been cancelled by the outbreak of war. Reconfirmation can be given to the whole of a previous treaty or to parts of it only. Sometimes reconfirmation is given in this very precise way, that a new treaty stipulates that a previous treaty shall be incorporated in itself. It must be emphasised that in such a case those parties to the new treaty which have not been parties to the previous treaty do not now become so by its reconfirmation, the latter applying to the previous contracting parties only.

§ 552. Treaties which have lost their binding force through expiration or cancellation may regain it through redintegration. A treaty becomes redintegrated by the mutual consent of the contracting parties regularly given in a new treaty. Thus it is usual for treaties of peace to redintegrate all those treaties cancelled through the outbreak of war whose stipulations the contracting parties do not want to alter.

Without doubt, redintegration does not necessarily take place exclusively by a treaty, as theoretically it must be considered possible for the contracting parties tacitly to redintegrate an expired or cancelled treaty by a line of conduct which indicates apparently their intention to redintegrate the treaty. However, I do not know of any instance of such tacit redintegration.

XIII INTERPRETATION OF TREATIES

Grotius, II. c. 16—Vattel, II. §§ 262-322—Hall, §§ 111-112—Phillimore, II. §§ 64-95—Halleck, I. pp. 296-304—Taylor, §§ 373-393—Walker, § 31—Wheaton, § 287—Moore, V. §§ 763-764—Heffter, § 95—Ullmann, § 84—Bonfils, Nos. 835-837—Despagnet, No. 450—Pradier-Fodéré, II. Nos. 1171-1189—Mérignhac, II. p. 678—Nys, III. pp. 41-43—Rivier, II. pp. 122-125—Calvo, III. §§ 1649-1660—Fiore, II. Nos. 1032-1046, and Code, Nos. 792-816—Martens, I. § 116—Westlake, I. pp. 282-283—Pick in R.G. XVII. (1907), pp. 5-35—Hyde in A.J. III. (1909), pp. 46-61.

§ 553. Neither customary nor conventional rules of International Law exist concerning interpretation of treaties. Grotius and the later authorities applied the rules of Roman Law respecting interpretation in general to interpretation of treaties. On the whole, such application is correct in so far as those rules of Roman Law are full of common sense. But it must be emphasised that interpretation of treaties is in the first instance a matter of consent between the contracting parties. If they choose a certain interpretation, no other has any basis. It is only when they disagree that an interpretation based on scientific grounds can ask a hearing. And these scientific grounds can be no other than those provided by jurisprudence. The best means of settling questions of interpretation, provided the parties cannot come to terms, is arbitration, as the appointed arbitrators will apply the general rules of jurisprudence. Now in regard to interpretation given by the parties themselves, there are two different ways open to them. They may either agree informally upon the interpretation and execute the treaty accordingly; or they may make an additional new treaty and stipulate therein such interpretation of the previous treaty as they choose. In the latter case one speaks of "authentic" interpretation in analogy with the authentic interpretation of Municipal Law given expressly by a statute. Nowadays treaties very often contain the so-called "compromise clause" as regards interpretation—namely, the clause that, in case the parties should not agree on questions of interpretation, these questions shall be settled by arbitration. Italy and Switzerland regularly endeavour to insert that clause in their treaties.

§ 554. It is of importance to enumerate some rules of interpretation[911] which recommend themselves on account of their suitability.

(1) All treaties must be interpreted according to their reasonable in contradistinction to their literal sense. An excellent example illustrating this rule is the following, which is quoted by several writers:—In the interest of Great Britain the Treaty of Peace of Utrecht of 1713 stipulated in its article 9 that the port and the fortifications of Dunkirk should be destroyed and never be rebuilt. France complied with this stipulation, but at the same time began building an even larger port at Mardyck, a league off Dunkirk. Great Britain protested on the ground that France in so acting was violating the reasonable, although not the literal, sense of the Peace of Utrecht, and France in the end recognised this interpretation and discontinued the building of the new port.

(2) The terms used in a treaty must be interpreted according to their usual meaning in the language of every-day life, provided they are not expressly used in a certain technical meaning or another meaning is not apparent from the context.

(3) It is taken for granted that the contracting parties intend something reasonable, something adequate to the purpose of the treaty, and something not inconsistent with generally recognised principles of International Law nor with previous treaty obligations towards third States. If, therefore, the meaning of a stipulation is ambiguous, the reasonable meaning is to be preferred to the unreasonable, the more reasonable to the less reasonable, the adequate meaning to the meaning not adequate for the purpose of the treaty, the consistent meaning to the meaning inconsistent with generally recognised principles of International Law and with previous treaty obligations towards third States.

(4) The principle in dubio mitius must be applied in interpreting treaties. If, therefore, the meaning of a stipulation is ambiguous, such meaning is to be preferred as is less onerous for the obliged party, or as interferes less with the parties' territorial and personal supremacy, or as contains less general restrictions upon the parties.

(5) Previous treaties between the same parties, and treaties between one of the parties and third parties, may be alluded to for the purpose of clearing up the meaning of a stipulation.

(6) If there is a discrepancy between the clear meaning of a stipulation, on the one hand, and, on the other, the intentions of one of the parties declared during the negotiations preceding the signing of a treaty, the decision must depend on the merits of the special case. If, for instance, the discrepancy was produced through a mere clerical error or by some other kind of mistake, it is obvious that an interpretation is necessary in accordance with the real intentions of the contracting parties.

(7) In case of a discrepancy between the clear meaning of a stipulation, on the one hand, and, on the other, the intentions of all the parties unanimously declared during the negotiations preceding the signing of the treaty, the meaning which corresponds to the real intentions of the parties must prevail over the meaning of the text. If, therefore—as in the case of the Declaration of London of 1909—the Report of the Drafting Committee contains certain interpretations and is unanimously accepted as authoritative by all the negotiators previous to the signing of the treaty, their interpretations must prevail.

(8) If two meanings of a stipulation are admissible according to the text of a treaty, such meaning is to prevail as the party proposing the stipulation knew at the time to be the meaning preferred by the party accepting it.

(9) If it is a matter of common knowledge that a State upholds a meaning which is different from the generally prevailing meaning of a term, and if nevertheless another State enters into a treaty with the former in which such term is made use of, such meaning must prevail as is upheld by the former. If, for instance, States conclude commercial treaties with the United States of America in which the most-favoured-nation clause[912] occurs, the particular meaning which the United States attribute to this clause must prevail.