law re contracts. a consideration in our present sense of the word being presumed from the solemnity of the transaction, but in the solemnity itself. The forms of sealing and delivery come down to us from a time when the general theory of the law started from a different or even opposite point to our own. The fundamental assumption of ancient law (when Ancient it has got so far as to recognize contract at all) is that the gards only validity of a contract depends not upon the substance of formal the transaction but upon its form. The rule is that formal contracts only can be sued upon the want of any part of the formalities is fatal, the fulfilment of them is conclusive (a). Not that we find this as an existing state of things at any traceable period of Roman or English law: considerable classes of informal contracts are excepted on various grounds which are practically reducible to "convenience amounting almost to necessity": a phrase which we here introduce by anticipation from the modern learning as to the informal contracts of corporations. When we come to that subject in a later part of this chapter, the reader will find that the law relating to the form of corporate contracts is still going through a process of struggling development not altogether unlike that which took place in earlier times with regard to the contracts of natural persons. Both in the Roman law as presented to us in Informal the Digest and Institutes, and in the English law of the actionable thirteenth, and even down to the latter part of the fifteenth only as century, the primitive doctrine that formal contracts alone in Roman give rise to actions is at the base of the whole learning of and old contracts. It is overlaid no doubt with a series of excep- law. tions-which in the English system, so far as one can now judge, are decidedly narrower in statement and less important in practice than in the Roman-but the exceptions are not as yet connected by any recognized general principle. In England we find this theory expressed by Bracton in (a) Maine, Ancient Law, 313 sqq. (4th ed.) contracts exceptions English L The Roman doctrine. almost purely Roman language (a) which is substantially repeated in Fleta. How far the theory was directly borrowed, or how far it already existed as a genuine parallel development of English legal ideas with which the authorities of the civil law were found in great measure to coincide, may perhaps be doubtful (b). At any rate the correspondence is so close that some statement of the Roman doctrine in its general effect is almost necessary to make its English counterpart intelligible (c). Formal contracts (legitimae conventiones) gave a right of action irrespective of their subject-matter. In Justinian's time the only kind of formal contract in use was the Stipulation (d), or verbal contract by question and answer, the question being put by the creditor and answered by the debtor (as Dari spondes? spondeo: Promittis? promitto: Facies? faciam). The origin and early history of the Stipulation are uncertain. In our authorities it appears as a formal contract capable of being applied to any kind of subject-matter at the pleasure of the parties (e). Its application was in course of time extended by the follow (a) In Britton the substantial correspondence remains, but the details are much more modified to suit the real facts of English practice, e.g. the verbal Stipulation all but disappears. (Cap. De Dette, 1. 156, ed. Nicholls.) (b) See Güterbock, Henr. de Bracton, § 18, pp. 107-8, where the parallel is accurately stated. (c) What follows is mostly abridged from Savigny, Obl. 2. 196 sqq. Compare Sir H. Maine's account in his chapter on the Early History of Contract, which is in close agreement with Savigny's. (d) The literarum obligatio (Gai. 3. 128) was obsolete. What appears under that title in the Institutes (3. 21) is a general rule of evidence unconnected with the ancient usage. Prof. Hunter has succeeded, I think, in showing that the derivation of the Stipulation from the nexum, tempting as it is, cannot be accepted. It seems quite possible that the earliest type of contract is to be sought in covenants made between independent tribes or families. Cf. Gai. 3. 94 on the use of the word spondeo in treaties. If this were so, one would expect the covenant to be confirmed by an oath, of which Prof. Muirhead (on Gai. 3. 92) finds a trace on other grounds in the form promittis promitto. (e) In a modern English book which has gone through several editions we find the astonishing statement that the Stipulation" was entered into before a magistrate or public officer through the medium of interrogatories and answers (sic) calculated to explain the nature and extent of the undertaking." The identification of a deed with literarum obligatio (Co. Lit. 1716) is nothing to this. ing steps. 1. The question and answer were not required to be in Latin (a). 2. An exact verbal correspondence between them was not necessary (b). 3. (which for our present purpose is the most important) an instrument in writing purporting to be the record of a Stipulation was treated as strong evidence of the Stipulation having actually taken place (c). (The notion sometimes met with that if a contract by verbal question and answer was good, a contract in writing must be good a fortiori, is of course a mere modern invention.) and causa. Informal agreements (pacta) did not give any right of Nudum pactum action without the presence of something more than the am mere fact of the agreement. This something more was called causa. Practically the term covers a somewhat wider ground than our "consideration executed:" but it has no general notion corresponding to it, at least none coextensive with the notion of contract; it is simply the mark, whatever that may be in the particular case, which distinguishes any particular class of agreements from the common herd of pacta and makes them actionable. Informal agreements not coming within any of the privileged classes were called nuda pacta and could not be sued on (d). The further application of this metaphor by speaking of the causa when it exists as the clothing or vesture of the agreement is without classical authority but very common: it is adopted to the full extent by our own early writers (e). The metaphor is in itself natural enough, and not confined to legal usage: in Sir H. Holland's posthumous essays we What informal contracts enforceable. read of "a naked inference now clothed with a positive cause" by the discoveries of spectrum analysis. The term nudum pactum is sometimes used, however, with a special and rather different meaning, to express the rule of the civil law that a contract without delivery will not pass property (a). The privileged informal contracts were the following: 1. Real contracts, where the causa consisted in the delivery of money or goods: namely mutui datio, commodatum, depositum, pignus, corresponding to our bailments. This class was expanded within historical times to cover the so-called innominate contracts denoted by the formula Do ut des,&c. (b), so that there was an enforceable obligation re contracta wherever, as we should say, there was a consideration executed yet the procedure in the different classes of cases was by no means uniform (c). 2. Consensual contracts, being contracts of constant occurrence in daily life in which no causa was required beyond the nature of the transaction itself. Four such contracts were recognized, the first three of them at all events from the earliest times of which we know anything, namely, Sale, Hire, Partnership, and Mandate. (Emptio Venditio, Locatio Conductio, Societas, Mandatum) (d). To this class great additions were made in later times. Subsidiary contracts (pacta adiecta) entered into at the same time and in connexion with contracts of an already enforceable class became likewise enforceable: and divers kinds of informal contracts were specially made actionable by the (a) Austin, 2. 1002, Traditionibus et usucapionibus domina rerum, non nudis pactis, transferuntur. Cod. 2. 3. de pactis, 20. But the context is not preserved, and the particular pactum in question may perhaps have been nudum in the general sense too. (b) Aut enim do tibi ut des, aut do ut facias, aut facio ut des, aut facio ut facias; in quibus quaeritur quae obligatio nascatur. D. 19. 5. de praescr. verbis, 5 pr. and see Vangerow, Pand. § 599 (3. 234, 7th ed.). Blackstone (Comm. 2. 444) took this formula for a classification of all valuable considerations, and his blunder has been copied without reflection by later writers. (c) Dig. I.c. §§ 1-4. (d) I have altered the statement here in deference to Prof. Muirhead's opinion (on Gai. 3. 216) that the actio mandati was comparatively modern. Edict and by imperial constitutions, the most material of these being the constitutum, covering the English heads of account stated and guaranty. Justinian added the pactum donationis, it seems with a special view to gifts to pious uses (a). Even after all these extensions, however, matters stood thus: "The Stipulation, as the only formal agreement existing in Justinian's time, gave a right of action. Certain particular classes of agreements also gave a right of action even if informally made. All other informal agreements (nuda pacta) gave none. This last proposition, that nuda pacta gave no right of action, may be regarded as the most characteristic principle of the Roman law of Contract" (b). We may now see the importance of bearing in mind that in Roman, and therefore also in early English law, nudum pactum does not mean an agreement made without consideration. civil law. So far the Roman theory. When it came to be adopted Modern or revived in Western Christendom, what happened in Germany was, according to Savigny, that the form of the Stipulation being foreign and unsupported by any real national custom like that which kept it alive among the Romans, never found its way into practice: and as there was nothing to put in its place, the distinction between. formal and informal agreements disappeared (c). The conclusion is that in the modern Roman law of Germany the requirement of causa does not exist. But this conclusion is by no means undisputed; in fact there is a decided conflict of opinion among modern writers, though the greater weight of authorities appear to be for the proposition here stated. It has even been maintained that a causa was required for the full validity of a Stipulation in the Roman law itself (d). Something of the same kind |