Towards a General Law of Contract

Comparative Studies in Continental and Anglo-American Legal History

Vergleichende Untersuchungen zur kontinentaleuropäischen und anglo-amerikanischen Rechtsgeschichte

Herausgegeben von

Prof. Dr. Dr. h. c. mult. Helmut Coing

und

Prof. Dr. Knut Wolfgang Nörr

Band 8

Towards a General Law

of Contract

Edited by John Barton

Duncker & Humblot - Berlin

Gedruckt mit Unterstützung der Gerda Henkel Stiftung, Düsseldorf

CIP-Titelaufnahme der Deutschen Bibliothek

Towards a general law of contract / ed. by John Barton. — Berlin: Duncker u. Humblot, 1990

(Comparative Studies in Continental and Anglo-American Legal History; Bd. 8) ISBN 3-428-06809-2

NE: Barton, John [Hrsg.]; GT

Alle Rechte, auch die des auszugsweisen Nachdrucks, der fotomechanischen Wiedergabe und der Übersetzung, für sämtliche Beiträge vorbehalten

© 1990 Duncker & Humblot GmbH, Berlin 41 Satz: Klaus-Dieter Voigt, Berlin 61

Druck: Druckerei Gerike GmbH, Berlin 36 Printed in Germany

ISSN 0935-1167 ISBN 3-428-06809-2

Inhaltsverzeichnis

John Barton

Introduction 7

John Barton

The Medieval Contract 15

John Barton The Action on the Case 39

Richard H. Helmholz

Contracts and the Canon Law 49

David J. Ibbetson

Consideration and the Theory of Contract in Sixteenth Century Common Law 67

Jean Bart Pacte et contrat dans la pratique française (XVIe - XVII Ie siècles) 125

Italo Birocchi

La questione dei patti nella dottrina tedesca dell'Usus modernus 139

Robert Feenstra

Pact and Contract in the Low Countries from the 16th to the 18th century . . . 197

Ugo Petronio Sinallagma e analisi strutturale dei contratti aH'origine del sistema contrattuale moderno 215

Italo Birocchi

Tra tradizione e nuova prassi giurisprudenziale: la questione dell'efficacia dei patti nella dottrina italiana dell'eta' moderna 249

James Gordley

Natural Law Origins of the Common Law of Contract 367

Verzeichnis der Mitarbeiter 467

Introduction

As Professor Petronio points out in this collection,1 how far in practice we have a general law of contracts, and how far a law of different contracts is a question which can still be debated at the present day. It is, however, a ques-tion which could hardly be asked so long as an agreement was not actionable as such, but only if it belonged to one or other of certain recognised types. The history of the abandonment of the rule that no action lies upôn a naked pact in different countries of Europe is traced in detail in no less than four of the papers printed below.2 In the Low Countries and in Germany, where the jurists were progressively more willing to hold that their national law had derogated from the ius commune, the distinction between the stipulation and the bare promise might be deemed to have been repudiated as inconsistent with mores hodierni, or never to have been received, since it was irreconcilable with that respect for one's given word which had been characteristic of the Germans since the age of Tacitus, though it could also be held that it was unknown to the law of Justinian, if his legislation were rightly understood. Since, in the law of the compilation, no particular form of words was required for a stipulation, the only naked pact which would not bear an action was a pact by which the party promising had not intended to bind himself. The attacks (entirely justified, if it be the law of Justinian that is in question) which this opinion had provoked when Maestertius first proposed it led its later sup-porters to refrain, somewhat unjustly, from mentioning him by name.3

The political fragmentation of Italy, where, in any case, the Roman law could not be deemed a foreign importation, made it more difficult for the Ita-lian jurists to appeal to their national law, but it was an opinion as old as the fourteenth century that since a naked pact creates a natural, though no civil obligation, and the prince (at least if he recognise no superior) is above the positive law, he may, and according to some, he is even obliged to enforce the performance of bare pacts manu regia upon the petition of his subjects. From this it might be taken to follow that bare pacts were enforceable officio iudicis ,

1 Sinallagma e analisi strutturale dei contratti aH'origine del sistema contrattuale moderno, below.

2 J. Bart, Pacte et contrat dans la pratique française; I. Birocchi, La questione dei patti nella dottrina tedesca dell'Usus modernus; Tra tradizione e nuova prassi giuris-prudenziale: La questione dell'efficacia dei patti nella dottrina italiana dell'eta mod-erna; R. Feenstra, Pact and Contract in the Low Countries from the sixteenth to the eighteenth century.

3 I. Birocchi , La questione dei patti, below.

8 Introduction

though not iure actionis, by the judges of any tribunal to which the prince had delegated, or was to be deemed to have delegated, his prerogative of justice: and the judges of the grandi tribunali were at one in holding that this preroga-tive had been delegated to themselves. To permit the judges to supply a remedy in cases where the positive law gave none was, however, to invest them with a discretion of formidable extent, not merely in matters of contract, and even at the end of the sixteenth century Scaccia could take a restrictive view of the prince's authority. The prince might, indeed, change the positive law, but he could not ignore rights founded upon it, and if the distinction be-tween pact and stipulation were unknown to the law of nature, it was no more contrary to the law of nature to require that a legally enforceable promise should be made in a certain form than to require that a testament be proved by seven witnesses rather than by two or three.4

In France, the adoption of the principle that solus consensus obligat had rendered this method of enforcing bare promises obsolete by the second half of the sixteenth century,5 but it was not yet wholly obsolete when Connanus was writing, and it is possible that a certain distaste for the manus regia was one of the motives which led him to attack the logical basis of the doctrine that the prince might intervene to enforce naked pacts by denying that a naked pact was obligatory in the law of nature. In the law of nature, an obligation was raised not by a simple promise, but by Synallagma. His doctrine is discussed in detail below by Professor Petronio and Professor Gordley.6 The latter points out that whether or not Connanus, and his master Alciatus, who had provided him with his definition of Synallagma , may properly be accused of mistransla-tion, the schoolmen had already found it difficult to hold the non-performance of a merely gratuitous promise a breach of that commutative or corrective jus-tice which Aristotle is treating in the famous passage upon synallagmata in the fifth book of the Ethics. Since one who is disappointed of an expected benefit is no worse off than he was before, the non-performance of a promise to give causes no new inequality between the parties. Indeed this difficulty had led Aquina's commentator Cajetanus to anticipate Connanus, by holding that if it were not an offence against justice to refuse another a promised benefit, a promise to give was not properly obligatory, even in conscience.

Connanus was arguing against the common opinion of the jurists, and he did not succeed in convincing the natural lawyers of the following century, but the doctrine of Grotius, whose refutation of him is generally taken to have settled the question for posterity, shows that if it be a necessary condition for the development of a general law of contract that bare promises should be enforceable, it is not a sufficient one. Grotius is treated in detail below by Pro-

4 I. Birocchi, Tra tradizione e nuova prassi giurisprudenziale, below. 5 J. Bart , Pacte et contrat, below. 6 Sinallagma e analisi strutturale; Natural law origins of the common law of contract.

Introduction

fessors Feenstra and Petronio.7 The distinction between the stipulation and the simple promise is ignored in the province of Holland, as contrary to ger-manica fides. Any promise made for a reasonable cause is obligatory, what-ever form of words the parties use, and whether or not they be present together. Promises, however, may be either written or verbal, and either expressed or implied by the law. Promises implied by the law may be implied with a contract, or without. The distinction between the different contracts of the ius commune, and even between nominate and innominate contracts, is not obsolete. An express promise, indeed, is always enforceable, and it is not material that it alters the nature of the contract, but in so far as the parties have not expressed a contrary intention, the different contracts are still gov-erned by different rules.

Promises differ from contracts even in the law of nature. As the positive law of Holland imposes obligations upon the parties which they have not expressly assumed, so, in the law of nature, those who conclude a contract are subject as a matter of justice to certain obligations which vary with the character of the contract, though they have not promised to perform them. This, indeed, is the true reason of the distinction, in Justinian's compilations, between nominate and innominate contracts. The former, by their more frequent use, had acquired a certain force and nature which might be sufficiently understood from the name though nothing were said, which is why the actions by which they were enforced bore the name of the contract upon which they lay. If the agreement sued upon were not of any regular type, the defendant could be bound to no more than he had expressly undertaken, and it would therefore be enforced not by a common and customary action, but by an action which was framed upon the terms of the particular agreement, and was therefore termed an actio praescriptis verbis. 8

The parties to an agreement rarely express their obligations so minutely as to leave no room for implication, and may sometimes have dealt together without any express agreement at all. If in modern practice the naked pact may be enforced officio judicis, or is deemed a pactum legitimum, 9 or has the force of a stipulation, the implied obligations of the parties still depend upon the type of contract which they have concluded. Moreover, though the Roman categories may be positive, the principle is not. What the parties are obliged to in justice also varies with the character of their agreement.

In his Inleidung, Grotius follows the Roman categories as closely as his sub-ject-matter will admit. Bills of exchange are dealt with under mandate, though they are mandates of so special a character that they require a separate sec-tion, as indeed do contracts for carriage by sea, and for the employment of

7 Pact and Contract in the Low Countries; Sinallagma e analisi strutturale. 8 De Jure Belli ac Pacis I I , 12, 3, 2. 9 I. Birocchi, La questione dei patti, below, at [pp. 20-21].