Modern in the different classes of cases was by no means uniform («). (B). 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 from the earliest times of which we know anything, namely Sale, Hire, Partnership, and Agency. (Emtio Venditio, Locatio Conductio, Societas, Mandatum). 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 Edict and by imperial constitutions, the most material of these being the constitutum, covering the English heads of account stated and guaranty (b). 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" (c). The reader will now see the importance of bearing in mind that in Roman, and therefore also in early English law, nulum pactum does not mean an agreement made without consideration. So far the Roman theory. When it came to be adopted or civil law. 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 (7). 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 appears to be for the proposition here stated. It has (a) Dig. 1.c. §§. 1-4. (b) The establishment of emphyteusis as a distict species of contract is of minor importance for our present purpose. OLD ENGLISH LAW. even been maintained that a causa was required for the full validity of a Stipulation in the Roman law itself (a). Something of the same kind seems to have happened in Scotland, where no consideration is needed to make a contract binding: this is qualified however by the rule that a gratuitous promise cannot be proved by oral evidence but only by writing (b). In French jurisprudence on the other hand the Roman causa has persisted (though in a pretty liberal interpretation) as a needful ingredient of every binding contract. Instead of pacta becoming legitimae conventiones, the legitimac conventiones have simply vanished. We shall see more of this in the next chapter. &c. But our English authors did find something to put in the Corresplace of the Stipulation: namely the solemnities of a deed. ponding English Bracton after setting forth almost in the very words of the Insti- doctrine in Bracton, tutes how "Verbis contrahitur obligatio per stipulationem" (c) &c. adds: "Et quod per scripturam fieri possit stipulatio et obligatio videtur, quia si scriptum fuerit in instrumento aliquem promisisse, perinde habetur ac si interrogatione praecedente responsum sit." (d). There is no doubt that he means only a writing under seal, though it is not so expressed: Fleta does say in so many words that a writing unsealed will not do (e). The equivalent for the Roman Stipulation being thus fixed, the classes of Real and Consensual contracts are recognized, in the terms of Roman law so far as the recognition goes: but the Consensual contracts are so meagrely handled that it looks as if they were introduced only for form's sake (ƒ). We hear of nothing corresponding to the later Roman extensions of the validity of informal agreements. Such agreements in general give no right of action: in Glanville it is expressly said: “Pri (a) See Vangerow, Pand. § 600 (3, 244). (b) Erskine, Pr. of Law of Sc. Bk. 3, Tit. 2, § 1; Bk. 4, Tit. 2, § 11. (c) One may doubt whether an English court ever in fact enforced or would have enforced a Stipulation proper, as well as whether it ever entertained an "actio legis Aquiliae de hominibus per feloniam occisis," fo. 1036. (d) 99b, 100a. (e) Lib. 2, c. 60, § 25. Non solum sufficiet scriptura nisi sigilli (f) Güterbock (p. 113) justly re- Remedies on Contracts in tury. vatas conventiones non solet curia domini regis tueri” (a), in a context suggesting that in his time even the regular Consensual contracts of the civil law fell within the proposition. The sum of the matter seems to have been thus. As to formal contracts: A contract under seal could be enforced by action of 13th cen- debt (placitum de debito). It was a good defence that Debt on the party's seal had been lost and affixed by a stranger covenant. without his knowledge, at least if the owner had given public notice of the loss (b); but not if it had been misapplied by a person in whose custody it was; for then, it was said, it was his own fault for not having it in better keeping. This detail shows how much more archaic English law still was than the developed Roman system from which it borrowed much of its language and also that delivery was not then known as one of the essential requisites of a deed. As to informal contracts: An action of debt might be brought for money lent, or the price of goods sold and delivered, and an action of detinue (which was but a species of debt) for chattels bailed (c). And probably an action of debt might be maintained for work done or on other consideration completely executed. At least the contractus innominati (do ut des &c.) are distinctly recognized by the text-writers, though in Bracton strangely out of their natural place, under the head of conditional grants (Bracton 18 b, 19 a; Fleta 1. 2. c. 60 § 23) (7). About two centuries later we find it quite clear that an action of debt will lie on any consideration executed (though the term is not used) and also-which marks a decided advance since Bracton's time-that on a contract for the sale of either goods or land an action may be maintained for the price before the goods are delivered or seisin given of the land (e). Debt on simple contract, detinue, &c. (a) Lib. 10, c. 18. "Curia domini regis" is significant, for the ecclesiastical courts did take cognizance of breaches of informal agreements as being against good conscience, ib. c. 12, and see Archdeacon Hale's Series of Precedents and Proceedings, where several instances will be found. It is worth noting that they seem to cease after the end of the 15th century, i.e. when the action of assumpsit in the temporal courts had become well established. (b) Glanville (L. 10, c. 12) has not even this: Britton, 1. 164, 166 as in the text. "Pur ceo qe il ad conu le fet estre soen en partie, soit agardé pur le pleyntif et se purveye autre foiz le defendaunt de meillour gardeyn." Cp. Fleta, 1. 6, c. 33, § 2 ; c. 34, § 4. (c) For the precise difference in the developed forms of pleading see per Maule J. 15 C. B. 303. (d) In Bracton fo. 19a, lines 14, 15, si (the second) and possunt are obvious misprints for sed and possum, also we must read with Güterbock "ut repetere non possim." (e) Y. B. Mich. 37 H. 6 [A.D. 1459] 8, pl. 18, by Prisot, C. J. Obligations quasi ex contractu might in some cases at least be enforced by action of debt. Such an action brought to recover money paid on a failure of consideration was held good in form (though there was in fact a covenant), Y. B. 21 & 22 E. 1, p. 600 (Rolls ed.) A.D. 1294] where it is also said that money paid as the price of land might be recovered back in an action of debt if the seller would not enfeoff the buyer. This action was probably a direct imitation of the Roman Condictions, and must not be confused with the modern action of assumpsit on the "common counts." The action of account was also in use, see 52 Hen. 3 (Stat. Account Marlb.) c. 17, 13 ed. 1 (Stat. Westm. 2) c. 23. It seems to have been for a long time a remedy of wide application (sometimes exclusively, sometimes concurrently with debt) to enforce claims of the kind which in modern times have been the subject of actions of assumpsit for money had and received or the like. It covered apparently all sorts of cases where money had been paid on condition or to be dealt with in some way prescribed by the person paying it (see cases in 1 Rol. Abr. 116). One must not be misled by the statement that "no man shall be charged in account but as guardian in socage, bailiff or receiver" (11 Co. Rep. 89, Co. Lit. 172 a): for it is also said " a man shall have a writ of account against one as bailiff or receiver where he was not his bailiff or receiver: for if a man receive money for my use I shall have an account against him as receiver; or if a man deliver money unto another to deliver over unto me, I shall have an account against him as my receiver" (F.N.B. 116 Q). This action might be brought by one partner against another (ib. 117 1)). At common law it could not be brought by executors, except, it seems, in the case of merchants, nor against them unless at the suit of the crown (Co. Lit. 90 b, and see Earl of Devonshire's ca. 11 Rep. 89): but it was made applicable both for and against executors by various statutes to which it is needless to refer particularly (2). In modern times this action has become all but obsolete (b). (a) The action is given against executors by 4 & 5 Ann. c. 3 (Rev. Stat.; 4 Ann. c. 16 in Ruffhead) s. 27. (b) See Lindley Ptnp. 1. 66, note r, 2. 909, note c, at common On informal executory agreements there was in general no remedy in the King's Courts. The Ecclesiastical Courts however took notice of them (see note p. 122 supra): and it may well be that executory mercantile contracts were also recognized in the Where no special courts which administered the law merchant. But we remedy cannot here attempt to throw any light on that which Mr. Justice Blackburn has found to be one of the obscurest passages in the history of English law (a). Also there are traces of exceptions by local custom. We read in F. N. B. 146 A. that "in London a man shall have a writ of covenant without a deed for the covenant broken," but the authorities referred to do not bear this out (b). law. Later in troduction of assump sit. It is not without significance that when a general remedy was at last found indispensable it was introduced in the form of an action nominally ex delicto-to wit the variety of trespass on the case which ultimately became the familiar action of assumpsit and the ordinary way of enforcing simple contracts. The final prevalence of assumpsit over debt was no doubt much aided by the defendant not being able to wage his law and by certain other advantages: but the reason of its original introduction was to supply a remedy where debt would not lie at all. This was not effected without some failures. The first recorded case is abridged by Reeves, and translated by Mr. C. P. Cooper (c), but is curious enough to bear repeating. The action was against a carpenter for having failed to build certain houses as he had contracted to do. The writ ran thus: "Quare cum idem [the defendant] ad quasdam domos ipsius Laurentii [the plaintiff] bene et fideliter infra certum tempus de novo construend' apud Grimesby assumpsisset, praedictus tamen T. domos ipsius L. infra tempus praedictum, &c., construere non curavit ad dampnum ipsius Laurentii decem libr', &c." The report proceeds to this effect: (a) Blackburn on the Contract of Sale, 207-8. In addition to the quotation there from the Year Book of Ed. 4, see now Y. B. 21 & 22 Ed. 1, p. 458. (b) The Year Book 27 H. 6. 10, pl. 6, shows only that by the custom of London a covenant to repair by the lessor was implied in leases: the case in 1 Leo. 2 shows a custom at Bristol "that conventio ore tenus facta shall bind the covenantor as strongly as if it were made by writing," which being taken strictly was held not to bind executors. (c) Hist. Eng. Law (Ed. Finlason), 2.508, 1 C. P. Cooper, Appx. 519, where subsequent cases are also collected and translated. |