(c)  James Dalrymple (Viscount Stair)120

between the two lay in the fact that an offer could be described as a type of promise, albeit one made conditional upon acceptance. In the case of such an offer, no obligation would be assumed by the promisor until the acceptance was forthcoming, whereas a ‘pure‘ promise was intended by the promisor to be binding immediately. Neither type of promise required mutual consideration (indeed such consideration was evidently irrelevant in the case of pure promise). Given the uniqueness in contemporary Western legal systems of this characterisation of promise as an obligation distinct from contract, a somewhat more detailed analysis is merited of Stair’s treatment of promise than has been given to the other writers mentioned thus far.

By Stair’s time, and in fact since at least the middle of the century before,122 the nudum pactum was enforced in Scots law, the principle of pacta sunt servanda having won out in Scotland. Whereas Connanus had disagreed, holding that gratuitous obligations did not even give rise to moral obligations, Stair rejected this view,123 and further asserted that, even if a promise is not enforceable as lacking a necessary formality, it still obliges the ‘conscience and honesty of the promisor’.124 As the rule of Scots law is proclaimed by Stair to be that, subject to any particular formalities applying in certain cases, all that is required to contract is the consent of the parties – ‘every paction produceth action’125 – a study of the differences between the Roman classes of contract was rejected by him,126 even though Stair immediately proceeds to divide his study of particular contracts in Scots law according to the Roman categories of loan, mandate, custody, sale, and lease and hire.127 While the Roman categories are preserved, they are each conceived of as having the unifying theoretical base of an agreement between the parties, a conception largely absent from Roman law.128 The formalism which characterised the stipulatio was to have no place in Scots law.

122Bare promises had been enforced at least since the decision in Drummond v. Bisset (1551) Mor. 12381.

123Institutions, I.x.10. All further references to Stair’s writings below are to this work.

124The reference to honesty makes one think of the Aristotelian conception of promising as truth-telling.

125I.x.10. 126 Ibid.

127Respectively, titles xii, xiii, xiv, xv and xvi of Book I.

128Though not all of the categories Stair discusses were always conceived of in terms of mutual contracts by Scots Law. The history of lease, for instance, discloses first a conception of lease as a bilateral contract, then a unilateral grant, before finally reverting to a bilateral contract once more: see Hogg, ‘Leases: Four Historical Portraits’, pp. 380–1.

What of the Roman pollicitatio? It seems implausible that Stair conceived­ of the Roman pollicitatio as having any place in Scots law: there is a single mention in the Institutions to ‘pollicitation’, where it appears in the phrase ‘promise, pollicitation or offer, paction and contract’.129 There has been a great deal of ultimately inconclusive debate amongst academics as to what Stair meant by a pollicitation,130 though there is nothing to suggest that he meant it in the Roman sense of an enforceable unilateral promise in favour of a municipality. It is more likely that he was using the term as either a synonym for a unilateral promise in general, or for an offer. The question is not helped by the fact that in the first edition of the Institutions the phrase reads ‘… pollicitation, or offer, …’, but the comma is not present in the second edition. As Sellar has commented, we shall probably never know what sense Stair intended, though this is not problematic: as the word is never used by him again, it can be safely ignored.

Stair can say that ‘pactions, contracts, covenants, and agreements, are synonymous terms’.131 As no mutual cause or consideration was required for a valid contract, gratuitous contracts were perfectly valid,132 though requiring the assent of both parties. Further than this, however, Stair definitively upheld the obligatory nature of a seriously intended unilateral promise, which he described as that ‘which is simple and pure, and hath not implied as a condition, the acceptance of another’.133 The contrary view of his fellow Northern natural lawyer, Grotius, is specifically rejected. The reason for Scots law adhering to the enforcement of the unilateral promise is stated to be that ‘the canon law having taken off the exception of the civil law, de nudo pacto’.134 There is no citation of canonical sources here, but Stair may perhaps have been confident that his readers would have been so familiar with this aspect of canon law that no such citation was necessary, though some indication of how the cross-over from canon to civil law had occurred would have been helpful. Nor is there citation of Spanish scholastic sources in support of Stair’s view, though, as noted earlier, Covarruvias, Soto and Molina all held to the view that, as all promises were binding, an acceptance of a promise was not required in principle (though a contrary Scholastic view was held by Lessius).

As noted earlier, Molina had justified the exception that a promise to contract (in other words, an offer) had to be accepted as a rule peculiar

129I.x.3.

130Smith, ‘Jus Quaesitum Tertio’, 15; Ashton Cross, ‘Bare Promise in Scots Law’; Rodger, ‘Molina, Stair and the Ius Quaesitum Tertio’; MacCormack, ‘A Note on Stair’s Use of the Term Pollicitatio’.

131I.x.10. 132 I.x.12. 133 I.x.4. 134 I.x.4.

to onerous contracts: because onerous contracts created mutual obligations, they required mutual assent and thus had to be accepted. Stair also describes an offer as a conditional promise (a ‘promise … pendent upon acceptation’), to the same effect that it does not bind until acceptance. Thus, in a similar vein to Molina, Stair reasons that ‘an offer accepted is a contract, because it is the deed of the two, the offerer and accepter’.135 The early adoption of the civilian offer and acceptance analysis, in contrast with the Common Law’s late borrowing of this approach from Pothier, is noteworthy.

Evidently, in Stair’s scheme, which classifies both an offer and a unilateral promise as species of promise, it becomes crucial to identify which was intended by a promisor. While this may be a difficult task in some cases, especially given that a unilateral promise may be subject to a condition, the distinction is crucial for the obligatory effect. Stair makes this plain by distinguishing the types of condition which can be attached to a promise: there are those conditions which are, ‘as in mutual contracts’ (in other words, as contained in an offer), suspensive of the obligatory force of the promise, but there are other conditions which do not prevent a promise from being immediately obligatory, albeit that the obligation cannot be enforced against the promisor until the condition is performed by the promisee.136 The distinction in effect between these types of condition Stair sees as exemplifying a division between those obligations which he calls μονοπλευρος (‘monopleuros’: one party, or unilateral) and those which are δευπλευρος (‘deupleiros’: two party, or bilateral).137 There is further discussion of the difficulties faced by courts of distinguishing offers and conditional promises in the modern law later in this work.138

While we have seen that Stair rejected the natural lawyers Connanus and Grotius in certain matters, he follows them in others. For instance,

135 I.x.4. 136 I.x.5.

137While it had been suggested that the terms may have been invented by Stair himself (see Mersinis, ‘Stair, Institutions, 1.10.5: A Linguistic Note’), this view overlooked the fact that the terms were also used roughly contemporaneously by Pufendorf in his De jure naturae, III.v.1: ‘adventitious obligations arise from an act, either μονοπλευρος or δευπλευρος, of which the former is a gratuitous promise, the latter a pact.’ More recent scholarship suggests that both Stair and Pufendorf may have taken the terms directly from the source where they seem first to have been used, that being Arnold Vinnius’s Commentary on Justinian’s Institutes, published in Amsterdam in 1658 (the relevant passage is his Commentary on Inst. III.xiv, then numbered III.xiii). While Stair may subsequently have become familiar with Pufendorf’s writings, the relevant chronology suggests that Stair found his direct inspiration for adoption of the terms in Vinnius: see further Richter, ‘Did Stair know Pufendorf?’.

138See discussion in Ch. 4, pp. 213–14.

the view of Lessius, Grotius and Pufendorf is adopted (though without citation of them) in relation to the outward expression of consent necessary before a promise can bind; the silent, inward promise is not (contrary to Soto and Molina) effective. While, says Stair, conventional obligations (like contract and promise) arise from ‘our will and consent’,139 outward expression of that will or consent is required in order to indicate that the party binding himself has moved beyond the first two ‘acts in the will’, namely ‘desire’ and ‘resolution’, to the third and crucial act, that of ‘engagement’.140 A resolution, being merely a purpose to do that which is desired, can be altered without any fault on the part of the resolver (unless, says Stair, we declare the resolution in order to assure others, when its alteration might import ‘levity and inconstancy, and sometimes deceit and unfaithfulness’141 when presumably some remedy might arise, though Stair does not indicate which).

Stair’s affirmation of the obligatory nature of the unilateral promise also permitted his description of the enforceable right in favour of a third party, styled a jus quaesitum tertio, as a species of promise,142 though as this subject is treated at length in Chapter 5, nothing more will be said of that case here.

What of Stair’s general contractual philosophy? He stands at the cusp of the change between the natural law tradition and later rationalist conceptions of law, demonstrating an artful blend of the established tradition with the emerging preference for rationality. Whilst the natural law tradition is marked in Stair, and he demonstrates a thorough knowledge of the Northern as well as Spanish natural law schools, distinctively AristotelianThomist ideas become subjugated in Stair to other considerations. Thus, while one finds in Stair’s writing a blend of natural law, reason, Scripture and Aristotelian virtues, the last of these is very muted: essentially the autonomy of parties and the will triumphs over ideas of commutative justice (such as the just price) and liberality.143 Reason is cleverly used to bolster the idea that nothing is more in conformity with the natural tendency to adhere to the faith of promises.

Stair makes an express reference to the Aristotelian typology of commutative and distributive justice,144 though this is not explicitly drawn

139 I.x.2. 140 I.x.2. 141 I.x.2. 142 I.x.5.

143Reid has posited the plausible argument that the positive role accorded by Aristotle to virtue was supplanted in the mind of Protestant jurists such as Stair by ‘a deep sense of the depravity of human nature’ (‘Thomas Aquinas and Viscount Stair’, p. 201).

144I.i.2. Stair comments of distributive justice that it is ‘now almost wholly devolved upon public authority’.

upon by him in his analysis of contract law.145 Likewise, though liberality is mentioned,146 it does not appear in his treatment of promises, which is a noteworthy absence: had Stair wished to underpin his exegesis of obligations with Aristotelian virtues, his discussion of gratuitous promise would have been an obvious place for such virtues to be mentioned. Instead, in rejecting Connanus’s position that gratuitous promises do not give rise to any moral obligation to perform, as lacking an onerous mutual cause, Stair cites the canon law, trust between men, natural equity, divine law and commercial considerations, but not the virtue of liberality.147 In what little Stair says of donations, there is also barely a reference to liberality­ .148 As for the just price, though he mentions the concept of enorm lesion (based upon the Roman laesio enormis), its ambit is restricted to transactions undertaken by minors.149 For contracts in general, Stair ultimately rejects any estimation of the value of the exchange than that of the parties themselves. Though he says that it is ‘the property of permutative contracts [that is, mutual contracts of exchange], that the purpose of the contractors is to keep an equality in the worth and value of the things’, he notes that Scots law has rejected the Roman rule,150 approved of by Grotius, that sales of land at less than half their just value are invalid. There follows a thoroughly modern discussion of how value in exchanges is to be estimated, demonstrating Stair’s appreciation of the subjectivity of value, with citation of the Codex and Seneca in support of his view. Stair ultimately concludes that ‘the equality required in these contracts [of exchange], cannot be in any other rate than the parties agree on’.151 The departure from Aristotelian ideas of commutative justice and the fair price is striking: in effect, though Stair pays lip service to the idea of an

145Reid has commented on Stair’s use of Aristotle that ‘there are slim pickings in the search for explicit borrowings from either Aristotle or Aquinas for the Aristotelian character of Stair’s work lies in its underlying method, argument and conceptual framework’ (‘Thomas Aquinas and Viscount Stair’, p. 197).

146I.viii.2. 147 I.x.10.

148He refers to it by name (at I.vii.2) in relation to the gratitude due by a donee, rather than in relation to the liberality of the donor. Stair says that such gratitude is not due by a donee in cases of necessity (see D. 5.3.25.11). He also discusses (at I.iii.5) natural obligations of ‘beneficence’, noting that these cannot be enforced at law, as well as the ‘inward obligations’ of ‘affection, love, kindness, &c’. The status of these virtues as moral but not legal obligations is telling in an author writing at the boundary of the natural law and enlightenment eras.

149I.vi.44; II.xii.31. 150 Codex, 4.44.2.

151I.x.14, though he notes the exception made for penalty and irritancy clauses, which are properly regulated at law, as well as in the case of contracts obtained through ‘fraud or guile’, where the obligation of delinquence (i.e. delict) provides a remedy.

more generally, without specific reference to deeds, that ‘[t]hose who err in the substantials of what is done, contract not’.155 Stair’s conclusion is that, unless the error is substantial, its being the cause of a transaction will not invalidate consent.156 The language of error in the substantials to describe relevant error is not conclusive of an Aristotelian approach, however, as the language is already found in the Roman texts, and it is a matter of debate whether the Roman authors had the Aristotelian sense in mind when using the term.157 However, Stair also uses the standard scholastic example of marriage to draw out his point about error in the substantials: he contrasts the example of a marriage undertaken to the wrong party, which he classifies as just such an error in the substantials, with a marriage to a woman undertaken in the mistaken belief that she is a virgin, or rich, or well-natured, each of which errors would go not to the substance of the transaction but rather to the accidents (though Stair does not use the latter Aristotelian term). This distinction between types of error affecting a marriage had been discussed by Aquinas, as well as by the Spanish scholastics, who showed a typically canon law interest in errors in persona. This might suggest a scholastic approach by Stair to the question, though the contrary view has been argued.158

Though Stair does not very often cite directly from the canon law, and does not do so in relation to the obligatory force of promises, from the discussion above it will be evident that the authority of the canon law towards promises was decisive for Stair.159 The canon law was not of course leading Stair to argue for a new position, given that he was describing an already established Scottish common law jurisprudence of his day, but his view certainly solidified the position given the authority which his Institutions came to have. Why the canon law position had come to be adopted by Scots common law has been explained in Chapter 2: essentially it prevailed through a fusion of the ecclesiastical and common law jurisdictions in Scotland. More often in Stair, however, there is direct reference to primary scriptural sources, indicating that Stair was not content

155 I.x.13. 156 I.ix.9.

157It is arguable that Ulpian had in mind Greek philosophical concepts in his discussion given that, in D. 18.1.9.2, when he cites the example of vinegar sold as wine, he refers to the ουσια (ousia), the being or essence, of an object, a Greek philosophical notion found in both Platonic and Aristotelian works: see further Schermaier, Materia, pp. 131–62.

158See Macleod, ‘Before Bell: The Roots of Error in the Scots Law of Contract’.

159He says of the canon law generally that ‘even where the Pope’s authority is rejected, yet consideration must be had to those laws … as containing many equitable and profitable laws, which because of their weighty matter, and their being once received, may more fitly be retained than rejected’ (I.i.14).