the next case on the calendar is  fact the only question is was this a domestic transaction within the rule of absolute activist the district court held that it was not and finding no stock for a claim dismissed for lack of subject m action entire case the facts insofar as are relevant to this appeal are pretty simple the plaintiff in the defendant both americans met in a series of meetings in new york city where the defendant solicited the plaintiff investment in a hospitality venture in the us in those discussions the defendant misrepresented the profitability and the capitalization of the venture the defendant offered the plaintiff an equity position in the investment the plaintive excepts plaintive then wired two hundred fifty thousand dollars from his new york account to the defendant and the defendant emailed to the plaintiff in new york saying you've got twenty percent of the  y another important point of course here is there was a condition proceeding to the actual performance of this agreement and that is that there had to be before the shares to be delivered to him in authorities and to approve the transaction but before the approval could be sought or any further purchases could be made which were contemplated or actual delivery of the payment approval the venture absconded with the money and here we are the rule of absolute activists is pretty simple insofar as it deals with this kind of transaction a transaction in securities is domestic if either the buyer or the seller becomes a graphic we committed to the transaction in the united states the district court said that neither party became ripley committed to this transaction because of the condition proceed and this would have to have been done in the bahamas our contention is the district court confounded control the issue here in that the district court was saying that actual performance of the contract could not be had whereas the securities if the bahamian authorities had approved the transaction and there could be no doubt a condition that was not within the the control of either of the parties there was no doubt  it it seems to me that the defendant would be committed to of paid the money for ten percent and then another hundred fifty thousand dollars for a second ten percent the defendant would be committed to issue the securities if the authority was obtained absolutely our position is rather common in  position is what would have stopped and what would have happened if the bahamian authorities did not approve that the performance would have been excused their position is and what what then the money would have been money wouldn't an obligation to return the money absolutely that's the way condition is that there was enough for a domestic purchase for an absolute activists purposes because there was a contract if the condition had been to fill the parties had to go forward with the contract exactly so our position is that the parties in fact were committed but one of the parties were both not only might have been excused if something happened but not only was the plate of committed the plaintiff had already performed absolutely and that is  think i can pass on to the next point then if if the court is clear on this and they're not from the questions the second is the issue of conflict of laws the district court also held or alternatively held that even if this were a domestic securit presented unusual facts and in an unusual situation it was a synthetic security basically and we jerk between the plaintiff and not of the defendants just a plaintiff in an other party or wagering whether volkswagen stock would go up or down a german exchange and the defendant porsche basically pushed actors had allegedly said false things in germany which made the price of folks own stock rise and the court quite quite understandably said the stance marson on its head but how can this be if there is a transaction in the united states and synthetics your security people are betting on what's going to happen another exchange everybody in the world who commits a stock fraud anywhere in the world is going to be hailed into u s court if u s parties not the defendant but us parties bet on leckie that can't be the case and it would have subjected porche to very unfair treatment because it was under investigation in germany and was being sued in the united states the possibility of inconsistent regulation here there is nobody has even suggested what the conflict of law might be  authorities say you can't do this the contract excuses the defendant so he's never caught in iraq and a hard place between payment and us and here we have the the final point made by the defendant is that there's no contract at all and i think as the court has perceived what we have here is a complete performance of act and under new york law that is binding commitment wrote you complete performance of two contract there they were you know with three contracts there was a contract to buy ten percent for one hundred thousand dollars which was fully performed by the plaintiff there was a contract to buy another ten percent for hundred fifty thousand dollars that was completely performed by the defendant but by the plaintiff then there was a contract to buy fifty percent interest with the price not being disclosed the price not being and that contract probably was an enforceable contract since it had no price but whether there was a third contract that wasn't really a contract is irrelevant to the first two  been a condition proceed to the formation of the contract but it was either waived or the condition just never occurred because the parties obviously went forward and performed the same and sent the money and sent confirmation i don't think i'm going to have to reserve any time thank you very much well let me just ask another question the the the condition that the judge livingston just asked you about that was set forth the complaint in the matter most favorable to the plaintiff and whether that was a part of the contract or whether it was an inducement like for example the allegations in the country you'll get back your money if you're not happy absolutely satisfied the defendant argues that that's that that means means it's not a definitive contract but that that that it thank you very much thank you and take it under su