The development of contract law in countries with a Romano-Germanic legal system
The most high level of development of law in general and in particular the law of obligations reached in ancient Rome. Activity Roman lawyers contributed to the development of a fundamentally new institutions of contract law, which has been regularly retsepirovalis various states of later eras. Roman law marked the structure of the whole system of contractual relations, spending their clear classification based on definicio each type of contract. But, first of all, we need to determine what is considered a contract on Roman law: contractus - the allowed transaction is recognized as the basis of the civil right of obligations between the parties [×àëàÿ, Ë.À.Èñòîðèÿ äîãîâîðíîãî ïðàâà : ó÷åá. ïîñîáèå / Ë.À. ×àëàÿ, À.Â. Ëÿäîâà ; Âëàäèì. ãîñ. óí-ò. – Âëàäèìèð : Èçä-âî Âëàäèì. ãîñ. óí-òà, 2008. – 172 ñ. – c29].
Roman law has been the most innovative and most copied system in the West; the law of contract was the most original and the most admired part of that system. Private agreements and applicable law occupy a central role in mercantile countries-indeed, in the Western world in general, and one would expect on a priori grounds that this branch of law would illuminate the whole subject of legal development and law in society. This is especially true in that a contract is a private agreement, almost a private law, operating between two individuals but requiring state recognition. The state may be either slow or quick to give such recognition: slow as in England where by the late twelfth century, the central royal courts exercised much jurisdiction over property law and criminal law but little over contract;' quick as in Rome where before 451 B.C. «stipulatio» could be used to make a legally enforceable agreement. The state may also have reservations about recognizing private agreements. It may be willing to enforce only agreements with specified minimum value-only those considered to have sufficient social or economic interest to the state. Or it may restrict its recognition to agreements concluded with specified formalities, the formalities might constitute an evidentiary justification or impress on the parties the seriousness of what they were doing. Or it may restrict its recognition to agreements of a particular subject matter. For instance, in Rome, the law enforced an agreement to exchange goods for money but not an agreement to exchange goods for services [The Evolution of Law: The Roman System of Contracts, Alan Watson. University of Georgia School of Law, firstname.lastname@example.org].
State recognition may involve various combinations of restrictions. For example, the French Code civil, art. 1341, provides that any agreement above a very tiny sum, although it is valid as a contract, is not susceptible of proof in court unless there is a written document either accepted by a notary or signed by the parties [The Evolution of Law: The Roman System of Contracts, Alan Watson. University of Georgia School of Law, email@example.com].
The starting point in time of inquiry is the era shortly before the enactment of the Twelve Tables, the earliest Roman codification, which is traditionally and accurately attributed to around 451-50 B.C.3 There is, of course, in any investigation of a legal system from a very different time and place always an initial difficulty of categorization. The question is specifically whether the Romans of that time conceived the notion of contract as we do. The answer is probably no, that in fact the Romans had no abstract concept of «contract». That term as used here includes, in the early fifth century B.C. the contract of stipulatio, but it excludes conveyances like mancipatio and in jure cessio and security transactions like nexum, even though the latter also possess elements of obligation based on agreement. This separation may seem unfortunate. But there are three reasons to accept the limitation on the term contract. First, our knowledge of the Twelve Tables is limited, and we have no evidence that the early Romans would have classified stipulatio with mancipatio and the others. Secondly, this categorization allows us to include all of the obligations that later Romans regarded as contractual and to exclude all obligations that later Romans did not regard as contracts. Thirdly, the modern perspective has grown out of the ideas that the Romans developed [The Evolution of Law: The Roman System of Contracts, Alan Watson. University of Georgia School of Law, firstname.lastname@example.org].
It is often said that the Romans never developed a system of contract but only of individual contracts, and the attempt is sometimes made to explain in economic terms why each contract arose when it did. Such attempts are doomed to failure because no investigation into contracts one by one and separately can make sense in economic terms of the order of their appearance. For instance, the contract of deposit appears in the fifth century B.C., loan for consumption in the third century B.C. at the latest, but barter, insofar as it was ever a contract at all, had to wait at least another few hundred years; all this occurred while there was no contract of sale until about 200 B.C. Again, there was no specific contract for reward for looking after a thing, reward in return for another's use of one's thing, or reward for one's services until, after the advent of coined money, the introduction of the contract of hire sometime close to 200 B.C. In these circumstances, the early dating, before 123 B.C., of the invention of a contract of mandate where someone agreed to act gratuitously for another-and the essence of the contract specified that the performance be gratuitous-seems unlikely if the need for the contract is to be explained on economic grounds.
The truth is more complicated, but if one is prepared to grant an important role for legal development to the legal tradition, then the unfolding of the growth of Roman contracts is rational and simple to explain. From very early times the Romans had a method, the stipulatio, by which parties could agree to create any obligation as long as it was not positively unlawful. If one dares to speak probably anachronistically, one can say that in very early times the Romans did have a general theory of contract, not a law of individual contracts. The question to be resolved then is how did this general approach to contract come to be lost? The clue to the development lies in a very strange fact that needs an explanation: apart from the very special and complex case of partnership, all Roman contracts either have a money prestation or no prestation. In this latter category are two kinds of contract: they may either be gratuitous of necessity or they are unilateral (in which case they may be matched with another contract). What does not exist, apart from the late and uncertain instance of barter, is a Roman contract where goods or, in a different case, services are proffered in return for goods and services. What is striking, moreover, is that in deciding which contract is involved, the touchstone is whether performance is necessarily (so far as the contract goes) for nothing or whether the performance is for money. For instance, depositum, commodatum (loan for use) and mandatum all become hire (locatio conductio) if payment is Roman contractual type must either contain it or be gratuitous? The solution to the problem of development is that in most cases an individual type of Roman contract arose subsequently to stipulatio when, for whatever reason, a stipulatio was inappropriate or inefficient for that type of situation and when there was a societal need. Thus, almost every subsequent contractual type is a derogation from stipulatio. It may at this stage be worth stating expressly that a legal remedy on an agreement is needed not in accordance with the frequency of important transactions but in accordance with the frequency of their going wrong [The Evolution of Law: The Roman System of Contracts, Alan Watson. University of Georgia School of Law, email@example.com].
One early contract was mutuum, loan for consumption. Mutuum was provided with the action known as the condictio, which lay when the plaintiff's claim was that the defendant was the owner of a thing which he was under a legal duty to deliver to the plaintiff. Many scholars believe mutuum to be very old with a prehistory before it came to be provided with the condictio-and if so, as we shall see, if we link the introduction of that action with the creation of mutuum as a legal institution. The legis actio per condictionem was introduced by the lex Silia when what was claimed was a determinate sum of money, the lex Calpurnia when what was claimed was a definite thing. It is usually held that the lex Silia was earlier on the basis that otherwise there would be no need for a law specifically covering money. David Daube, as we shall see, adds a new dimension. In any event, whatever the priority of these two statutes may have been, the remedy of the condictio is old. As early as the composition of the Rudens by Plautus, who died in 184 B.C., the classical procedure by formula could be used for the condictio as well as the archaic procedure by legis actio. And there would be little point in setting up fresh legis actiones onceformulae were in being [The Evolution of Law: The Roman System of Contracts, Alan Watson. University of Georgia School of Law, firstname.lastname@example.org].
The peculiarities of the condictio are that it is abstract in the sense that the plaintiff does not set out in the pleadings the grounds of his case; it is general in that it can be brought any time a nonowner believes that the owner of money or a certain thing is under a legal obligation to give it to him; and that, apart from exceptional cases, there had to be a preceding delivery of the thing to the defendant by the plaintiff. Thus, the condictio could be brought both where there was and where there was not a contract. The generality coupled with the abstraction requires explanation, and the simplest explanation is that the condictio was originally envisaged for one concrete situation-and was found to be extendable to others which was so obvious that it did not have to be expressly set out. The most obvious concrete situation is mutuum, which in fact has always been treated as the primary use of the condictio. Loan for consumption would need to be given legal effectiveness when there was a breakdown in neighborly relations, when one friend failed to repay a loan: in an early agricultural community a loan of seed corn to be repaid after the harvest would be a common case. priate for one friend, performing an amicable service, to demand a formal contract from another. Where the loan was commercial, a stipulation would have been taken, to cover interest as well, and there would be no need for a specific contract of mutuum. We now see also why the action on mutuum was for the principal only and did not extend to interest: friends do not demand interest from friends. The breakdown in neighborly relations might be related to an increase in Rome's size [The Evolution of Law: The Roman System of Contracts, Alan Watson. University of Georgia School of Law, email@example.com].
But the earliest action for a mutuum was apparently for money, not for seed corn. This is explained by David Daube in a wide framework. He stresses that 'some transactions, originally belonging to the gift area of fellowship, «Gemeinschaft», tend to assume the more rigid, legalistic characteristics of partnership, «Gesellschaft», when money enters.' Specifically with regard to mutuum, the giving of an action-at first restricted to a money loan-marks for him a breakdown in the gift trade [David Daube, 'Money and Justiciability,' Zeitschrift der Savigny-Stiftung (rom. Abt.) (1979) Iff.]. Earlier, a gift of corn or money to a friend in need was expected to be returned by a converse gift at an opportune time. I would prefer to think that even before the lex Silia, the idea of mutuum was that of a loan to be returned in due course, but that is a minor matter. What is significant is that Daube offers a plausible explanation for the condictio being originally restricted to a claim for money [The Evolution of Law: The Roman System of Contracts, Alan Watson. University of Georgia School of Law, firstname.lastname@example.org].
Deposit was, I believe, another early specific type of contract. The jurist Paul tells us: «On account of deposit an action is given by the Twelve Tables for double, by the praetor's edict for single. It has long been held that the action for double under the Twelve Tables, being penal, was not necessarily based on any concept of contract and was closer to delict [The Evolution of Law: The Roman System of Contracts, Alan Watson. University of Georgia School of Law, email@example.com]..
The development of the Roman law furnishes an interesting illustration of the principles which applied generally to the development of contracts. The earliest contracts were the formal contracts. Certain of these were contracts theformof which was religious and which were enforced primarily by a religious sanction. The religion of Rome was its own native religion and not a foreign importation. For this reason and because of the fact that the college of pontiffs, the priestly caste, were the oracles of the Roman law at the early period of its development. the religious element in Roman law persisted longer than in English law at a corresponding stage of development. The most solemn of the formal religious promissory oaths was the jus jurandnm by which the promisor devoted himself to the infernal gods in case he should break his promise; and which was enforced by penalties amounting practically to outlawry and excommunication. A less drastic form of religious promise was probably the sponsio in which the promisor poured out a libation of wine calling upon the gods to witness his promise. With the disappearance of the religious element and the substitution of the power of the state as a sanction, this turns into the formal oral stipulatio which is entered into by formal question and formal answer. A very early contract at Roman law was the nexum, the contract per aes et libram, by means of the money and the scales. The transaction took the form of a symbolic sale, before five witnesses, and the libripens, who held the official scales. A formal dialogue between promisor and promisee took place, during which the scales were struck with the piece of money, probably as a symbol of weighing the copper. The absence of any of these formalities vitiated the contract. This was a loan contract which involved the debtor in very serious consequences in case of his default. The exact nature of these consequences has always been a matter of dispute; 1 but they were sufficiently serious to form one of the great grievances of the debtor in early Rome. The contract litteris grew out of the Roman custom of keeping books ofaccountfor each of the families. An entry upon thecreditorsbooks if based upon a lawful causa operated as a contract at least if such entry were made with the consent of the debtor. The contracts which grew out of performance on one side in return for anexecutoryobligation on the other side were known as real contracts at the Roman law. The elements of contracts of this sort were the deliveryo r performance by the one side, together with the mutual intention of entering into the contract. There were four of these real contracts; the mutuum which was a transfer of property to the debtor to be repaid by him in kind to the creditor; the commodatum which was the gratuitous loan, the depositum which was a transfer of property for gratuitous safekeeping; and the pignus or pledge, which was the transfer of property by the debtor to the creditor as security for the debt. At a later stage the Roman law recognized the consentual contracts which depended upon the mutual agreement of the parties. It recognized, however, only four classes of these contracts; the sale, the locatio conductio, which was divided into three classes, rei, operarum, and operis, in other words contracts for the hire of a thing for a certain time, and for a certain compensation, contracts for services generally, and contracts for a certain specific job; the societas or partnership, and the mandatum or the contract for gratuitous agency. Additions were made from time to time to these classes of contracts. Of the pacta or promises which originally were unenforceable, some were recognized, by the jus civile or the early law of Rome peculiar to Roman citizens; some were recognized and made enforceable by the edict of the praetor; and some were made enforceable by later imperial legislation. A number of real contracts which were outside of the original list of real contracts were recognized and enforced under the generalheading of the innominate contracts; that is, contracts haying no definite name. In Justinian's arrangement these were grouped under the four headings do ut des, do ut facias, facio ut des, and facio ut facias. During the entire period of the development of Roman law, including the final period of codification, no genera ltheory of contract was worked out. Many different classes of contracts were recognized; but unless a contract could be placed under one of these classes, it was one of the innumerable pacta which might operate as a defense, but which could not be enforced in an action. Modern civil law, which is Roman law applied to modern life on the continent of Europe, endeavored in vain to make the Roman classes of contract fit modern conditions; and finally it was driven to take the position that every deliberate declaration of intention which was made with the intention of creating an obligation should have that effect. This was effected by Pothier's declaration that "the principles of Roman law respecting the different kinds of agreements and the distinction between contracts and simple agreements, not being founded on the law of nature and being indeed very far from simplicity are not recognized in our law». [The law of contracts Vol1, William Herbert Page – The W.H. Anderson Company, 1919].
One of the great Roman inventions - it is now widely accepted that there were no foreign models is the consensual contract, a contract that is legally binding simply because of the parties' agreement and that requires no formalities for its creation. There were four of these, and it is generally presumed that the contract of sale, emptio venditio, was the earliest. It seems to me to have been fully actionable by around 200 B.C. There have been numerous theories to explain the origins of consensual sale. Some of these, such as the hypothesis that at one time the agreement became binding only if the buyer had given the seller an earnest of his payment of the price or only if the seller had delivered to the buyer, are now seen to lack support from the sources. Other theories attempt to explain how Romans got the idea that agreements without formality might be actionable. For instance, Theodor Mommsen's work on state contracts, involving the public sale of booty, is an example [Theodor Mommsen, 'Die r6mischen Anfange von Kauf and Miethe,' Zeitschrift der Savigny-Stiftung 6 (rom. Abt.) (1885) 260ff.]. Mommsen's theory provides no insight, however, into the transformation of private bargains into contracts of sale which, though made by private individuals, were enforced by the courts. There may be more than one root in the development of the consensual contract. But whatever economic or social pressures one wants to postulate, whether one says consensual sale was wanted because (as some think) of an expansion of foreign trade and contracts were wanted which could be made at a distance, or because (as others hold) a formless contract was needed since foreign merchants were unfamiliar with Roman law formalities, or because (as still others argue) a growing awareness of the value of good faith in contract law arose in the context of dealings between Romans and foreigners,30 the same conclusion holds: consensual sale as a separate contract arose in part because of the inadequacy of the stipulatio for the task. There should be no doubt that before the introduction of the consensual contract, parties to a sale-type transaction who wanted legal enforcement of their agreement would make their arrangements in the form of stipulations. And further development would not have occurred if this way of making the arrangement had been satisfactory. [The Evolution of Law: The Roman System of Contracts, Alan Watson. University of Georgia School of Law, firstname.lastname@example.org].
We have no real indications of how or when or to what end the literal contract arose, and hence no argument can be drawn from it for or against any theory of the growth of Roman contract law. It was in existence by around the beginning of the first century B.C. but may well be much older. In classical law it arose when a Roman head of family marked in his account books that a debt had been paid when it had not, then made an entry to the effect that a loan had been made when it had not.l5 Thus it was not an originating contract but a method of transforming one kind of obligation into another. Whether that was also the case when the literal contract first came into being, and whether in the beginning the writing had to be in the formal account books is not clear. The action was the actio certae pecuniae, and therefore had to be for a fixed amount of money. The literal contract was flourishing in 70 A.D. when the eruption of Vesuvius destroyed Pompeii, but it had apparently disappeared from use by the end of the classical period [The Evolution of Law: The Roman System of Contracts, Alan Watson. University of Georgia School of Law, email@example.com].
Only one standard Roman contract, societas, partnership, remains to be examined, and its origins and growth are unique. The oldest Roman partnership, ercto non cito, is very old and came into being when the head of a family died and his estate went to his sui heredes, that is, persons who were subject to his paternal power and on his death came to be free of any power. They were immediately partners in the inheritance and remained so until the inheritance was divided. Since persons in the power of another owned no property, the sui heredes had nothing until the inheritance came their way, hence ercto non cito is a partnership of all the property of the partners. This is not a contractual partnership, but later persons who wished to set up such a partnership were allowed to do so by means of legis actio, the archaic form of process, before the praetor. Eventually the praetor gave an action on a consensual contract of partnership, perhaps around the time when he created the consensual contracts of sale and hire. But this consensual contract of partnership was modelled on the old ercto non cito: significantly, the praetor set out in his Edict only one formula, a model form of action, and that was for a partnership of all of the assets of the partners. Hence, the primary type of consensual partnership was not a commercial arrangement between merchants-they would want a much more restricted partnership-but between close relatives and friends, probably wishing to engage in a communal agricultural enterprise. Rome had long been commercially active, and a business partnership would clearly have been economically useful, but because of legal history and legal tradition the primary instance of consensual partnership was not mercantile. Whether from the outset, as certainly was the case later, there could be partnerships of a restricted kind cannot be determined [The Evolution of Law: The Roman System of Contracts, Alan Watson. University of Georgia School of Law, firstname.lastname@example.org].
With regard to contract law in ancient Rome, we can conclude that it has integrated both of the ancient East, as ancient Greece, to include yourself and the adjustments and innovations of Roman jurists.
In other words, there has been a complex process of selection, drawing, processing and mastering rich legal material and use it to create a new advanced and improved the legal system. An important distinguishing feature of Roman law is its flexibility, whereby incidents and rules arising from the development of commodity-money relations, turned into an inexhaustible source of law-making for lawyers subsequent periods.
Later, the legal process of borrowing is called "reception" (from the Latin. Receptio- decision).