Nudum causa. Informal agreements (pacta) did not give any right of action pactum and without the presence of something more than the 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 co-extensive 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 (a). What informal contracts enforce able. 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 (b). The metaphor is in itself natural enough, and not confined to legal usage: in the late Sir H. Holland's posthumous essays we read of "a naked inference now clothed with a positive cause discoveries of spectrum analysis. by the 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 (c). The privileged informal contracts were the following: (a) 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. (d), so that there 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. (d) 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 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 (@). (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). 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 or Modern 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 (d). 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 his blunder has been copied without reflection by later writers. (a) Dig. 1.c. §§. 1-4. (b) The establishment of emphyteusis as a distinct species of con tract is of minor importance for our (c) Sav. Obl. 2. 231. Corresponding English &c. 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 (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 legitimae conventiones have simply vanished. We shall see more of this in the next chapter. But our English authors did find something to put in the place of the Stipulation: namely the solemnities of a deed. doctrine in Bracton after setting forth almost in the very words of the InstiBracton, 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 solum sufficiet scriptura nisi sigilli munimine stipulantis roboretur cum testimonio fide dignorum praesentium. The wrong use of stipulans for the covenantor deserves remark. (f) Güterbock (p. 113) justly remarks that what Bracton says of the Contract of Sale in another place (fo. 61b) shows that it was not a true consensual contract in his view. The passage is curious, inasmuch as it contradicts the modern law of England in nearly all points, and the civil law in most. give no right of action: in Glanville it is expressly said: "Privatas 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. on Con tracts in Debt on The sum of the matter seems to have been thus. As to formal Remedies contracts: A contract under seal could be enforced by action of debt (placitum de debito). It was a good defence that the 13th century. party's seal had been lost and affixed by a stranger without his knowledge, at least if the owner had given public notice of the covenant. 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 Debt on simple 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 detinue, 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 Jes, &c.) are distinctly recognized by the text-writers, though in Bracton strangely out of their natural place, under the head of conditional grants (Bracton 186, 19a; Fleta 1. 2, c. 60 § 23) (d). (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 Blackstone's Comm. 1. 52, and authorities there cited, and 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, and therefore the spiritual courts would have been prohibited from entertaining such matters, as they had already been prohibited from entertaining suits nominally pro laesione fidei, but really equivalent (b) Glanville (L. 10, c. 12) has not (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." 66 contract, &c. Account. 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 (a). 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 Ed. 1, p. 603 (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 66 common counts." The action of account was also in use, see 52 Hen. 3 (Stat. 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. 117D). 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 (a) Y. B. Mich. 37 H. 6 [A.D. 1459] 8, pl. 18, by Prisot, C. J. |