Учебный год 22-23 / W_W_BUCKLAND_AND_ARNOLD_D_McNAIR_ROMAN_LA
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in the lease would have been brought in covenant, not in assumpsit. Again, much that is now regularly considered contract was at one time only bailment; and indeed the incorporation of bailment in contract, never complete, has caused difficulties and some distortion in the law of contract, especially as regards the doctrine of consideration. The law of master and servant, too, has been thought of much more in terms of status than of contract. It is to be found in Blackstone's first volume, which deals with public and personal rights, rather than in the second and third volumes, where he deals with property and civil wrongs. In all these cases we get excellent examples of a tendency which Pound has made much of in his various books, a tendency to think in terms not of the * legal transaction, an act intended to create legal results to which the law carrying out the will of the actor gives the intended effect',1 but of relations, the relation of landlord and tenant, of principal and agent, of vendor and purchaser, of partnership. If we leave on one side those which have just been discussed, and if we also disregard, as not yet forming part of the developed common law, such contracts as belong to the law merchant, what have we left? There is nothing very important except sale, and sale seems to have become, even more than in Roman law, the typical contract. Sale influenced the development of the notion of consideration, which was generalised so as to be the one requirement in all simple contracts,2 and, for purposes of actionability, all those other relations came to be regarded as sales. But it is quite clear that they all existed before assumpsit. Thus it is not quite correct to say that English law first developed a general
law of contracts, and |
then elaborated, |
under its aegis, |
the various particular |
contracts. In fact |
the parallelism |
between the Roman and English developments is much closer than has usually been thought.
1 |
Spirit of the Common Law, p. 2 1 . |
2 |
See Plucknett, Concise History ofthe Common Law, 5th ed. pp. 6 5 o, 6 51. |
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(ii) There still remains, of course, a marked difference in that Roman law never attained to a general principle of actionability. We can only conjecture the reasons for that difference, but I suggest that, apart altogether from reasons connected with conflicts of jurisdiction infifteenthand sixteenth century England, much can be put down to different ways of looking at contract. Authors at any rate have concentrated their attention very much on problems connected with the formation and the discharge of contract, and the assignment of contractual rights and duties, all of them matters which can be dealt with generally for all classes of contracts, whereas in Roman law it is obvious that the jurists paid far more attention to the terms of contracts, and very little of this can be dealt with on a general level. One cannot ask in general what a contracting party naturally intends by his contract, but one can ask what is implied in a sale or in some other particular contract. Why the Romans concentrated on the terms, rather than on the problems more closely connected with the general law of contract, we shall probably never know— their habits of thought became settled during the latter half of the republican period, the most obscure period of all during the history of Roman private law—but one fact is clear: the central point of their thought is the difference between a contractual figure with a well-defined shape manifested in terms which can be implied from the nature of the transaction, and the unilateral promise, every term of which must be expressed. In dealing with the former they had the dexterity and tactical sense to establish those contractual figures which were most essential and which covered nearly all the transactions which naturally fell into well recognised types, and the rest they left to be dealt with by the unilateral promise, the stipulation or by combinations of such promises. A little reflexion will show how many transactions fell within the recognised figures of the consensual contracts. First there is sale, the great master contract to which, as Professor
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Gutteridge has said,1 so many other contracts such as * carriage, insurance andfinanceare after all only ancillary*;
then locatio conduction which covered the ground now covered not only by landlord and tenant, but also carriage
of passengers and of goods by sea or land, master and servant, work and labour, and, in certain cases, even such topics as insurance; partnership, which for the Romans meant any exploitation in common; and mandate, which, as it meant merely the undertaking of a task on the instructions of another, was made to cover not only all the relations of principal and agent inter sey but also assignment, certain types of suretyship, gratuitous services of various kinds, and even professional services. The proper choice and construction of these figures, so as to reconcile the firm outline of a specific shape with the inclusion of as many transactions as possible, was one of the most remarkable performances of the Roman mind.2 It is a task which English lawyers never attempted; and the reason, I am convinced, does not lie in different views of actionability. The Romans did not prefer to have four or eight or ten actions to one because they preferred a multiplicity of actions—we have more actions in tort than the Romans had in delict—but they were more concerned than we have been with the implied terms of the various contracts. Perhaps their habits of mind were formed at a time when commerce was more stable' than at the corresponding period of English legal history. On the whole the period of the late Republic and of the Empire was not a period of expanding commerce or of developing commercial methods. On the other hand there has never been a time since the fifteenth century when commerce and industry have been in anything like equilibrium. It is always necessary for business men to think out new terms for their contracts. In other words, express terms are
1 |
British Tear Book of International Law, Vol. xiv. p. 77. |
2 |
Engels, Ludwig Feuerbach (1935, Eng. tr.), pp. 63—64. |
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much more important than implied terms in English law, and indeed the most familiar of all decisions to the commercial lawyer is The Moorcock* in which it was stated that the law will imply only such terms as are necessary to give business efficacy to the contract. Even where the law has, as in the Sale ofGoods Act, 1893, built up a complete apparatus of implied terms, whole classes of merchants systematically exclude the Act and write out their contracts afresh. This was of course possible, and no doubt it happened, at Rome, for one of the greatfieldsof usefulness of the stipulatio was in making contracts every term of which was express. But everything seems to show that the stipulatio was regarded as a supplementary way of contracting to be used in the rare cases where the particular contracts such as sale could not be used. Moreover, it was only with considerable difficulty, and, as it were, by an afterthought, that the Romans accepted the notion that one could vary the terms of these contractual figures by express pacts. Such a law of contract could never have suited us at any time after the end of the Middle Ages. Our contracts do not fall so easily into typical figures.
It follows that contracts such as those which modern civilians call innominate contracts have never presented any difficulty to the English lawyer; and that the problem for the Roman jurist was not quite that which usually appears in the books. It is usually thought that the main difficulty was to make such contracts, which do not fall within the well-known particular contracts, actionable. But it is probable that at any time after the beginning of the Empire the Praetor would have allowed an action on any such contract which seemed to call for it: we underestimate the number of stray actions given by the Praetor in particular cases without any antecedent promise in the edict. However, it seems to be agreed that it was only in the time of Justinian that any general principle of action-
1 (1889), 14P.D.64.
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ability was established in corfnexion with innominate contracts. In truth the classical jurists were not greatly concerned with that particular problem. It was enough for them that the plaintiff could get his action if he really needed it. What interested them far more was not whether a transaction which did not fall under the recognised particular contracts had an action, and was therefore to be considered a contract, but rather what contract it was, what was its shape, what were its implied terms.1 That is a problem which can never be got rid of, because, however one adds to the number of particular contracts, there are always bound to be some gaps in the scheme. One certainly does not get rid of the question by formulating some general test of actionability.
It seems, therefore, clear that by the time of Justinian the point of view had shifted. Certainly if the classical jurists had been deeply concerned with the problem whether the innominate contracts should not be actionable, they could have invented an action for the purpose. That they did not do so shows that they were interested in a quite different point, namely, the terms of the particular transaction in question, and it seems almost certain that the technique by which they approached this problem was to tack each of these transactions, so far as was possible, on to the known particular contracts, so as to give to them the advantages of such implied terms as could be extended to them.
1 Thus Zeno, when constituting emphyteusis a separate contract, was forced to lay down its implied terms. See J. 3. 4. 3.
CHAPTER VIII. PARTICULAR
CONTRACTS
1. UNILATERAL CONTRACTS IN GENERAL
It has been noted that the Roman contracts break into two groups, those stricti iuris (so called only in later law) and those which gave bonae fidei remedies and may be called bonae fidei contracts, the former group and those alone being purely unilateral.
Unilateral contracts in this sense can hardly be said to exist with us. It is true that a man can make a gratuitous binding promise under seal, but such a thing is unusual and its commonest form, a deed of gift, is often a transfer and not a contract creating an obligation. But it is not to be supposed that the Romans promised something for nothing more readily than we do, and though a number of their contracts were unilateral, it does not follow that the transaction of which they were the expression was also unilateral. Thus mutuum (loan of money and the like) is unilateral; but this is only because till the money is lent there is no contract at all. The most general contract of all, stipulation is unilateral, but such a stipulatio will not be a solitary act: in most cases it will be part of a dealing. It may of course be a promise by way of gift. But more usually it will be a promise to pay for some service already rendered (which with us would normally not be binding unless under seal), or given in return for a counterpromise. In this last case there will be an exceptio doli if the other party refuses to fulfil his counter-promise, and if, when the promisor has performed, the other party refuses to do his part, there will be remedies varying with the circumstances. Similarly the contract literis, expensilatio^
1 G. 3. 128 sqq.
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though in form a unilateral transaction—it is so unlike anything in our law that we need not say much of it—is, at least usually, a novation of some pre-existing dealing. It may be remarked that this contract, a statement of indebtedness entered by the creditor in his account-book with the debtor's consent in the fictitious form of a loan to him, seems to be dispositive in the sense that it was the contract itself and not mere evidence of it.1 It was, however, obsolete so early and so little is known of it that we cannot be very certain of anything about it. The rule of later law that a written acknowledgement of indebtedness or a written promise to repay a loan was, after a certain ldpse of time, indisputable except on grounds of fraud or duress, seems to be, like our estoppel by deed, rather a rule of evidence than of substantive law. But there is reason to think that in Justinian's time the Greek notion of the writing in any transaction as being the contract and not mere evidence of it was in course of being absorbed. It may be that in all systems the difference between dispositive and merely evidentiary documents is not a sharp distinction, but a question of degree.
The description of the contract literis suggests a rather puzzling phenomenon. In the ancient formal acts of Roman private law, inter vivos, it is the person who is to benefit who goes through the formal act.z In this contract the entry of indebtedness is made by the creditor in his own book. In mancipatio it is the person who is acquiring who makes the formal declaration.3 The same is of course true of the derivative forms of mancipation that is to say,
1It is perhaps relevant to mention the distinction between our Account Stated as a substantive cause of action and an I.O.U. which is purely evidentiary. Perhaps an even clearer instance of a dispositive act is a grant of an estate in land by deed, which does not merely evidence the intention of the grantor to pass the property but actually passes it.
2In the procedure of legis actio we get a similar state of things. Ritual words are prescribed for the person who is claiming, not for the defendant.
3See p. i n , ante.
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coemptio, thefamiliae mancipatio by which wills were made in the classical period and nexutn. In cessio in iure it is the person who is to acquire who utters the formal words, as in the variants, manumissio vindicta, the process of adoption, etc. In manumission censu it is the slave who enters his name, consentiente domino. In formal release per aes et libram it is the debtor who declares himself formally released. In stipulatio it is the promisee who formulates the promise. Dictio dotis^ in which the pater or avus or the woman herself formally declares a dos,l is only in appearance an exception, for the persons who can promise in this way are precisely those to whom the dos so declared will revert on the termination of the marriage, so that their declaration that the property is to be dos establishes a reversionary right in themselves. Voturn^ a unilateral undertaking to a god,2 does not seem to have had ritual words, and indeed
it would be difficult to get a formal declaration of acquisition from the god. Even in traditio^ which was entirely informal, it was the acquirer who acted, though the point is only to be inferred from the much greater difficulty the Romans found in admitting representation of the acquirer than of the transferor. The latter only needed to consent, and his consent could be expressed in whatever way he wished, even through an intermediary; whereas the acquirer had to do the taking himself, or through one in his power, and exeptions to this rule were admitted only piecemeal. With us it is the donor who makes the deed of gift; it was the feoffor who, in a feoffment, spoke the formal words. A conveyance is a declaration by the transferor and if effected, as is usual, by an indenture needs only execution by the transferor; indeed it can be done effectively by deed poll. It is not necessary that the grantee or donee or promisee under a deed should execute it, though of course it cannot impose any obligation upon him unless he does so; it takes effect as soon as the active party,
1 Buckland, Text-book, p. 457. |
2 Buckland, Text-book, p. 458. |
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grantor or donor or promisor, has executed it (that is, sealed and delivered and, since 1925, signed it) and before the passive party is aware of it or has expressed his assent to it, though the latter may of course disclaim the benefit of the deed when it comes to his notice for he cannot be made to acquire against his will although he can acquire passively. What the cause of the Roman rule may be is uncertain. In mancipatio it is perhaps, as Jhering says,1 due to the intensity of their conception of property and of the truly ' quiritarian' mode of acquisition as being by seizure.2
In the conception of contract in both systems, both form and agreement played a part. But their history has not been the same in the two systems, and in each system their respective spheres have varied with the lapse of time. These factors make comparison difficult. A further difficulty is that with us the early law of contract is the law of certain actions, such as Debt, Covenant and Account, rather than the law of obligation, and in two of these, Debt and Account, the basis of the action is recuperatory, not consensual, while the early history of Covenant is almost entirely confined to transactions affecting land.3 Nevertheless it seems true that with us, agreement, undertaking, became, apart from delict, the essential element in obligation at a relatively early date, whereas the Roman
1E.g. Geist des rom. Rechts, Erster Th. Sect. 10.
2G. 4. 16. Dr D. Daube has suggested to us in view of the existence of the same thing in some other systems that Jhering's solution may be inadequate. A primitive people might see in such a thing a beginning of enjoyment, a sort otquasi-traditio. But surely Jhering's point is a good one. Where
a title is derived* from a grant by another person, there may well be a suggestion that it is revocable by the grantor. Many examples of this can be found in political life. A nation may not feel safe in the enjoyment of its liberties unless it has won them for itself. While the original of the English practice of conferring, rather than acquiring, titles may be obscure, it fitted admirably the feudal system, under which all titles were ultimately derived from the king and, as, it were, coursed from that root through the trunk and branches of the feudal tree.
3 P. and M. ii. pp. 203-222.
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law continued for much longer to consider the form gone through as more important than agreement. * If a man said he was bound, he was bound', says Holmes1 of a written acknowledgement of indebtedness in the early common law. It would seem that in the earlier period of Roman legal history the stipulatio played a much greater part than covenant did with us; but the general position was not very different. The great change came with the introduction, probably at much the same stage of legal development, of the Roman consensual contracts and of the English parol contract enforced by assumpsit. For whereas assumpsit could be used to enforce any lawful agreement, whatever its terms, so long as it satisfied the not very arduous requirements set by the doctrine of consideration, the consensual contracts had each a range which, though wide, was bounded by definite limits and— what was much more important—had each a set of standard implied terms which could at first, in most cases, not be easily varied by the parties. Hence the stipulatio had a very wide field of usefulness. Not only had it to be used to give validity to agreements which fell outside or between the various real and consensual contracts, but it must always have been the usual way of making a contract which, even though it belonged to one of the types furnished with their own particular actions, contained a number of terms specially agreed on between the parties. Moreover, the stipulation though not less strict than the covenant, was much less cumbrous in form. Indeed, if the parties were face to face with each other, it was as easy to make as any other contract. As no general doctrine of consideration ever appeared2 it is not surprising that the formal unilateral contract is more prominent than it is with us.
1Common Law, p. 262.
2The Romans were not without the notion of consideration: the most important commercial contracts, those of sale, hire and partnership, all required it.