positive law might require an outward declaration of a promise, under the natural law and as a matter of principle even a silent promise could bind the promisor. It was not this impractical view that won out, but rather the contrary view of Lessius that an outward declaration of the promisor’s will was required,36 a view supported in the fundamental requirements for a promise suggested in Chapter 1. There was an equally lively debate as to the question of whether an acceptance of a promise was necessary: Covarruvias, Soto, and Molina said that, as all promises were binding, an acceptance of a promise was not required in principle; Lessius disagreed, holding that an acceptance was necessary because it was the promisor’s condition for being bound, an argument which clearly conceived of the nature of an offer as a conditional promise. This debate is noteworthy in being conducted in promissory terms; had the focus of contract been rather on agreement, no debate could have been seriously entertained as to whether an acceptance (or some other sign of agreement) was needed. The shift to thinking of contract primarily in agreement terms had not yet come.

The Spanish scholastics represented the penultimate flowering of the ancient natural law tradition, its final proponents being the Northern natural law school discussed below, whose members stood on the cusp between late medieval and early modern legal thought.

(b)  English law

Though it is a standard observation to contrast the Common law with the Romano-civilian heritage of Continental Europe, one remarkable shared feature of both English law and Roman law is the extent to which legal development in each came about as a result of changes in forms of pleading rather than as a result of legal theory. While their content might be different, English law and Roman law were both essentially legal systems based upon actions. As will thus be seen, the eventual rise of will theory in the Common law should not really be seen as the triumph of any overarching theoretical or moral perspective, but rather the result of gradual development in legal and commercial practice.

The history of the development of English law narrated below will highlight the importance of promise to contractual thought in England.37

36Lessius, De iustitia et iure, 2,18,5.

37A short, though now somewhat dated, summary of the place of promise in the law, largely from a Common law perspective, is found in Farnsworth, ‘The Past of Promise: An Historical Introduction to Contract’.

This is clearly observable in the rise of the promissory action of assumpsit, which was to became one of the cornerstones of the unified law of contract of the nineteenth century. To that observation must, however, be added the crucial further remark that the promissory nature of assumpsit was to become, in time, a reciprocal rather than a unilateral promissory one, given the development of the doctrine of consideration. English contractual development, like that of the Continent, was to be one of a shift from promise to mutual agreement.

A noteworthy feature of English law between Glanvill in the late twelfth century and Blackstone in the mid-eighteenth century is the dearth of theoretical treatments of contract law. Such an absence means that the focus of the discussion below will be on court practice and decision in relation to the three medieval actions of debt, covenant and assumpsit, out of which modern English contract law largely grew. There is also some discussion of the form of contracts and the doctrine of consideration.

(i)  Debt

The early form of the English writ of debt38 is narrated in Ranulf de Glanvill’s late twelfth century Treatise on the Laws and Customs of England.39 The writ could be raised for a debt deriving from any cause, which need not be narrated in the writ itself. The form of the writ asked the court to order the debtor to pay a specified sum of money (or to hand over specific goods due) to the creditor. Though the debt might conceivably derive from an underlying agreement, it could be due as a result of some other cause. Glanvill lists two forms of proof of debt, witness or sealed charter.40 Thus, an underlying verbal agreement which gave rise to a debt might be proved by the bringing of witnesses; otherwise, a sealed instrument embodying the debtor’s obligation might be produced. Agreements unsupported by anything except the allegation that the other party had pledged the faith of the agreement (that is, given his word to perform) did not fall within the jurisdiction of the King’s court, such mere breaches of the faith of the parties falling instead within the jurisdiction of the ecclesiastical courts.41 The connotations of the writ

38See further Simpson, A History of the Common Law of Contract, pp. 53–135.

39Glanvill, Tractatus de legibus et consuetudinibus regni Angliae.

40Glanvill, x,12.

41Glanvill, x,12: ‘When the debtor appears in court on the appointed day, if the creditor has neither gage [a pledge] nor sureties nor any other proof except a mere pledge of faith, this is not sufficient proof in the court of the lord king. Of course, any breach of faith may be sued upon in an ecclesiastical court.’

with shame and dishonour have been remarked upon, this being a point of contact between the action of debt and the early idea of an obligation in Roman law.42

Glanvill was familiar with Roman law, so it is not surprising that at least four of the five causae which he lists as supporting the writ of debt are highly reminiscent of Roman actions: consumption, sale, loan for use and lease, as well as ‘any other just cause of indebtedness’.43 The influence of Roman law, at least in terminology if not in substance,44 was evidently too great to be extinguished by its study being banned by King Stephen around 1150.45

The action of debt was evidently useful as a means of enforcing an underlying agreement if a claim for a specific sum could be proved before the court; it was not available where such a specific sum could not be stated, for instance because the parties had left the price of an agreement to be fixed at a later date. Another difficulty with using the writ of debt was that the debtor might repel the action by swearing that the debt was not due and by producing eleven ‘oath helpers’ who would testify to the same effect.46

(ii)  Covenant

The second action out of which the modern law of contract grew was that of covenant.47 Like debt, the form of the writ simply narrated that the party bringing the writ was entitled to some performance and begged the court to order the other party to perform it or to pay damages (as assessed by a jury). The action developed in the course of the thirteenth century out of the action of trespass: again, like the Roman concept of an obligatio, it thus grew out of the redress due for wrongful behaviour. The idea of covenant meant no more than agreement, such agreement being narrated in the writ, but the origins of covenant in trespass gave the writ

44Unlike the Roman law, Glanvill’s discussion of the various types of consensual contract which he lists places great stress upon pledges of performance, such as delivery in a ­contract of sale. Scrutton, The Influence of the Roman Law, argues that the Continental influence on English law was mainly terminological (see p. 74f). A similar point in relation to the Roman legal influence on the action of debt is made by Ibbetson, An historical Introduction, p. 19.

45Hall, in the introduction to his translation of Glanvill (p. xviii), surmised that Roman law continued to exert some influence on England because it had proved indispensable to the canon lawyers.

46Ibbetson, An Historical Introduction, p. 32.

47See further, Simpson, A History of the Common Law of Contract, pp. 9–52.