Учебный год 22-23 / W_W_BUCKLAND_AND_ARNOLD_D_McNAIR_ROMAN_LA

276 PARTICULAR CONTRACTS

Holmes1 says: 'In one sense, everything is form which the law requires to make a promise binding over and above the mere expression of the promisor's will. Consideration is a form as much as a seal. . ..' That is true, but form has two different meanings and effects. In the earlier stages of legal development form is the factor which makes the transaction binding whether or not there was in fact real consent; for instance, the ritual act in mancipation the oral question and answer of stipulatio in its earlier days and the seal at that time in our history when

'a man was bound by his seal, although it was affixed without his consent'2 and before he could plead 'non est factum'.S In this sense there is little difference between Roman and English legal history. Roman law, it is clear, even if we do not adopt the extreme views sometimes maintained, was slow in admitting the reliefs associated with * reality of consent' and the like, for persons who had made formal promises. Even in England fraud could not be pleaded in defence to a deed at common law until Lord Mansfield. But in a second and later sense form denotes some factor required by the law, such as the * memorandum or note... in writing', as evidence that the affair is seriously meant. This kind of form does not make the transaction binding if there is in fact no consent. It is in this sense that consideration can be called 'form'; to use Anson's phrase it is a 'test of actionability' of promises, evidence that the promise is one which the law ought to enforce. Of form in this (Holmes') sense the two systems have, apart from the stipulatio and consideration, singularly little. In particular, in neither system is writing a general requirement (for both peoples exhibit a strong tendency to regard a man's spoken word as being 'as good as his bond') and much important business is done without it.

1Common Law, p. 273.

2Holmes, cit. p. 272; P. and M. ii. p. 536; i. p. 508.

3See Thoroughgooa"s Case (1582), 2 Co. Rep. 9 a.

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2. LOAN FOR USE, DEPOSIT AND PLEDGE

The contracts of commodatum (loan for use), depositum (deposit for safe-keeping) and, apart from its 'real' effect, pignus (pledge), offer little material for comparison or at least for contrast, since our law is in this matter very largely derived from the Roman law. It may be noted, however, that the first two are essentially gratuitous bailments (like our loan of goods but not necessarily our deposit) and no contract at all exists until the thing has been handed over.

If any hire is agreed on or any reward for the care it becomes an entirely different contract, namely locatio rei or opens, consensual contracts in which the mere agreement creates obligations. But none of them, whether gratuitous or paid, resembles bailment in one important respect. They do not give legal possession, but only detention or custody. Thus, on the one hand, they give no occasion for the rubric of larceny by a bailee, for the holder differed in position in no way from any third person who stole the thing, though this is not the place in which to discuss what amounted to a theft by such a holder; on the other hand, if these persons had, as the borrower had, but the depositee had not, an action for theft if the thing was stolen, this was not by virtue of any right or interest in the thing, but by virtue of what is sometimes called a * negative interesse\ i.e. the fact that they are responsible to the owner if the thing is stolen. The borrower is so responsible—the depositee, as such, i.e. the gratuitous depositee, is not, and has therefore no actio furti. The pledgee is in a different position. He has possessory rights and indeed more than possessory rights. He has normally certain powers of alienation and he has an action for recovery of the thing wherever it may be, which is a good deal more effective than the possessory interdict, the remedy of the possessor as such when he is deprived of possession. He has therefore an actio furti in respect of his positive interest, though it must be admitted

278 PARTICULAR CONTRACTS

that the texts are very far from clear as to the basis of his action and the measure of damages.1 Our law too recognises the greater interest of the pledgee in the chattel pledged than that of other bailees, and, though he has possession only, his interest is often judicially referred to as being a 'special property' in the goods.2

It should be noted that, though these contracts of loan and deposit were binding only when the thing had been handed over, like mutuum^ loan of money, they were not in the result unilateral, as that is. There were possible liabilities on both sides. Those of the depositee and borrower were obvious, but the other party had his obligations. The lender must, for instance, pay all unusual expenses of maintenance^ and the depositor must pay all incidental expenses. The depositor was liable if the thing did damage through some noxious characteristic of which he knew or ought to have known; and even the lender was liable if actual knowledge could be imputed to him.4 There is not a great deal of English authority upon the liabilities of the bailor in these two cases, but the lender at any rate is liable to the borrower for the consequences of any defects of which he was aware and which he did not communicate to the borrower; and, speaking generally, our law upon loan and deposit is very like the Roman law which is the source of so much of it.

It is curious that our law, like our language, seems to have experienced more difficulty than the Roman system did in grasping the notion of fungibility. The Roman law distinguished clearly between mutuum> loan not for use but for consumption, the debtor being bound to return not the same thing, e.g. the same money, corn or wine, but the same quantity of things of that kind and quality, and loan for use, the thing being returned, which later was recog-

1Buckland, Text-book, p. 580.

2Attenborough v. Solomon, [1913] A.C. 76, 84.

3D. 13. 6. 18. 2, 4. * D. 13. 6. 18. 3; 47. 2. 62. 5.

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nised as a 'real' contract and called commodatum. There is no sign that the two were ever confused. But in our law the remedy for the recovery of all things other than land was at first the same, the writ of debt, which closely resembled the writ of right for land. The defendant was ordered to render to the plaintiff so many marks or shillings * whereof he unjustly deforces him* and it is not until after the time of Glanvill that debt is reserved for money and throws off detinue as the appropriate remedy for other chattels.1 Even to this day 'we lend books and half-crowns to borrowers' and speak of having * money in the bank'. Pollock and Maitland2 attribute this confusion to the fact that 'time was when oxen served as money* and 'one ox must be regarded for the purposes of the law as exactly as good as another ox* (which is equally true of the history of Rome), and find the consequences of this ' pecuniary character of chattels' in the inadequacy of our remedies for the recovery of moveables. We distinguish clearly between loan of money and gratuitous loan of specific goods, but where a fungible article, such as corn, is handed over on the terms that an equal quantity of like quality in its original or in an altered form shall be restored, we appear to regard the transaction as sale (or at any rate as a transfer of property for value) and not bailment.3

3. CONSENSUAL CONTRACTS: GENERAL

In Roman law, apart from certain praetorian and later pacts, of relatively small importance, there were only four contracts which were binding by mere consent, and these

3 The evidence is scanty and unsatisfactory and is not easy to reconcile with the requirement of'price' in Section 1 of the Sale of Goods Act, 1893: see South Australian Insurance v. Randell{\ 869), L.R. 3 P.C. 101; Jones on Bailments, 1st ed. sects. 47, 228, 283, 439; Halsbury, vol. 2, sect. 220.

There is not the same difficulty in the United States, where the Uniform Sales Act, s. 9(2), says that 'The price may be made payable in any personal property'.

while, with us, when once it is clear that the transaction is a sale of goods the absence of a fixed price will not prevent the contract from being valid. There was in Roman law no such thing as a sale at a 'reasonableprice', though, if there was a certum pretium, there might be other} uncertain, elements as well. An agreement to sell at a reasonable price was no more than a stage in the negotiations and bound neither party. Thus a sale 'at such a price as Titius shallfix*was, in Justinian's law, a contract only if and when Titius did fix a price ;x it appears to be in the meantime a conditional contract. This is an unsatisfactory solution, for both parties may be held up indefinitely by Titius; the better view seems to be that of some older lawyers that there was as yet no contract at all. In English law an executory contract of sale at a price to be fixed by a third party is regarded as a valid contract subject to a condition subsequent and is avoided if the third party does not fix the price; but in so far as the contract has been executed by delivery of the goods to, and appropriation of them by, the buyer hemust pay a reasonable price therefor.2 A sale for 'all the money in that box* was on the accepted view a sale for a certum pretiunfi and it might have been argued, and probably was, for there were great disputes, that 'at whatever price Titius may fix* was on the same footing, and there was an immediate sale, or agreement for sale.4 But this view was not accepted. In fact, the principle 'id certum est quod certum reddi potest' had a very narrow application and was not used to liberalise the law.

There was on the texts another remarkable difference. There might be, as with us, a valid agreement to sell a future thing, next year's crop or a thing to be made.5 The

1 Inst. cit. 2 Sale of Goods Act, 1893, Sect. 9. 3 D. 18. 1. 7. 1.

4The absence of any 'real' effect prevents the appearance in Roman law of the distinction between a sale and an agreement to sell which appears in our law. All Roman sales were 'agreements to sell'.

5D. 18. 1. 8./>r., 39. 1; Lee v. Griffin (1861), 30 L.J.Q.B. 252.

connexion with bulk sales, which are usually governed, not by the Sale of Goods Act, but by standard contracts, seems to show that instead of merely varying the terms of the ordinary law of sale, parties prefer to set out all the terms afresh. The stipulatio was peculiarly fitted for this purpose.1

Another rule, rather curious in view of the clearness with which the Romans handled the notion of ownership, is that the vendor is not bound to make the buyer owner. He must indeed do all in his power to make the buyer owner; he must, for instance, mancipate the thing if it is a res tnancipi* but his obligation is to give the buyer undisturbed possession and to guarantee him against eviction by superior title. One text is frequently cited to show that if the contract was definitely to transfer ownership, it would not be sale, but it does not really bear this interpretation.3 The reason why the rule is put in this way is much disputed: the most probable explanation seems to be that proof of title may be costly and difficult, and the rule has the advantageous result that the vendor is not called on to prove his title till it is effectively disputed.

Turning to English law, it seems that transfer of ownership was not till recently an essential ingredient in the contract of sale of goods. In 1849 Baron Parke said:4 'the result of the older authorities is that there is by the law of England no warranty of title in the actual contract of sale' of goods ' any more than there is of quality. The rule of caveat emptor applies to both.' Later this rule was modified, and either a condition or a warranty was implied in the absence of rebutting circumstances. Then section 12 of the Sale of Goods Act, 1893, removing some uncertainty, implied, as regards transactions falling within the

3D. 12. 4. 16. For discussion and references see Buckland, Text-book, p. 488. For different views see De Zulueta, Roman Law o/Sa/e, pp. 36-37; Lawson, 65 L.Q.R. pp. 364-366.

4Mor/ey v. Attenborough (1849), 3 Exch. 500, at p. 512.