!!Экзамен зачет 2023 год / The Law of Obligations

price. Under these circumstances the vendor will often be prepared to give him credit, provided he retains some form of security. One of the most obvious ways of securing the vendor's claim is to make transfer of ownership of the res vendita dependent upon payment of the full purchase price.148 Modern legal systems accommodate these needs and interests of the parties in the form of hire-purchase contracts'49 or instalment sales.150

In Rome, the parties were taken to have concluded two transactions: a contract of emptio venditio, combined with a locatio conductio (rei).151 The Roman lawyers, however, did not deal with them in isolation, but adjusted the rights and duties of the parties in a most flexible and undogmatic manner. A generalizing statement about how the problems arising from the cumulative combination of sale and lease were tackled, is provided by Paulus:

"Interdum locator non obligatur, conductor obligatur, veluti cum emptor flindum conducit, donee pretium ei solvat. . . . Item si pretio non soluto inempta res facta sit, tune ex locato erit actio."152

A piece of property has been sold. Either the sale may have been unconditional (as presumably, for instance, in the example of the first sentence) or it may have been concluded subject to a lex commissoria (it is likely that this is the situation dealt with in the second sentence). The vendor has not yet transferred ownership, since the purchase price has not been paid. But he is prepared to allow the purchaser to live on the property in the meantime; he therefore leases it to him. This contract of lease is concluded "donee pretium emptor solvat": it is to fall away once the purchase price has been paid. According to Paulus, the vendor/lessor can avail himself of the actio locati. During the existence of the lease he can bring it in order to enforce payment of the

148On the pactum reservati dominii of the ius commune cf. .e.g. Gliick, vol. 16, pp. 229 sqq.; Windscheid/Kipp, § 172, 7; Gottfried Schiemann, "Ober die Funktion des pactum reservati dominii wahrend der Rezeptionen des romischen Rechts in Italien und Mitteleuropa", (1976) 93 ZSS 161 sqq. In South African law, considerable confusion exists about the legal effect of such pacts reserving ownership; this is due to the decision by Lord De Villiers CJ, in Quirk's Trustees к. Assignees of Liddte & Co. (1885) 3 SC 322. For a discussion, see M.A. Diemont, P.J. Aronstam, The Law of Credit Agreements and HirePurchase in South Africa (5th ed., 1982), pp. 13 sqq. On the reservation of title in Roman law cf, most recently, Anton Meinhart, "Dogmengeschichtliches und Dogmatisches zum

Eigentumsvorbehalt", (1988) 105 ZSS 729 sqq.

49 Cf., for South Africa, the provisions of the Hire-Purchase Act, 36/1942 and now the

Credit Agreements Act, 75/1980. On the legal nature of this type of contract (sale or lease?), see Diemont/Aronstam, op. cit., note 148, pp. 20 sqq.

150 Cf, for Ge rman y, the "G e se tz be tre ffend d ie A bzah lung sge scha fte" ( Act re lating to

instalment-transactions) of 16 May 1894 (pre-BGB!); cf. e.g. Hans-Peter Benohr, "Konsumentenschutz vor 80 Jahren", (1974) 138 ZHR 492 sqq.; Eike von Hippel, Verbraucherschutz (3rd ed. 1986), pp. 192 sqq.

151For details, see Rolf Knutel, "Kauf und Pacht bei Abzahlungsgescha'ften im romischen Recht", in: Studien im romischen Recht (1973), pp. 33 sqq.

152Paul . D . 19 , 2, 2 0, 2; ide m, D . 19, 2, 22.

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rent.153 But he can also use this action to reclaim the property.154 That is the case when the contract of sale has fallen away (due to the fact that the purchase price or the individual instalments have not been paid in time).155 As a consequence, the lease must terminate too, since it was to exist only "donee pretium emptor solvat". That has now become impossible.

As long, however, as the purchaser/lessee paid the instalments of the purchase price, the vendor/lessor was not able to reclaim the land. Ulpianus D, 43, 26, 20 makes it clear that this was so, even where the purchaser was only precario tenens. It must have applied, a fortiori, where he was a lessee.156 "Locator non obligatur, conductor obligatur": if the purchaser was bound under the contract of lease, he could, in turn, not bring the actio conducti against the vendor. The overriding intention of the parties was, after all, the conclusion of a sale. Questions of risk and liability therefore had to be decided according to the rules relating to emptio venditio, and the position of the purchaser was adequately protected by the actio empti. There was no room for an actio conducti: the sale, in so far, overshadowed all else.157

V.INNOMINATE REAL CONTRACTS

1.Permutatio and the rise of actiones praescriptis verbis

But, of course, not nearly all problems could be solved in this or a similar fashion. One need merely look at exchange agreements (permutatio). We have seen that the Sabinians were prepared to grant the actiones empti and venditi, but that in the end the Proculian view prevailed: without a purchase price in money there could be no sale.158 Thus, permutatio remained within the "no man's land" of unenforceable pacta. Other informal arrangements which could not be brought under one of the existing contracts, or which combined certain elements of two or more of them, shared this fate. Under these circumstances it cannot always have been easy for the parties to determine whether their transaction was binding or not, and a rigid adherence by the Roman lawyers to a closed system of contracts and actions would have caused considerable hardship. A remedy therefore

155Contra: David Daubc, (1958) 5 RIDA 430, 433; but see Knutel, op. cit., note 151, pp. 35 sqq.

154Paul. D. 19, 2, 20, 2 and 22, 1; cf. J.A.C. Thomas, "Tenancy by Purchaser", (1959)

10 Iura 107 sq.; Salvatorc Tondo, " 'Pignus' e 'precarium'", (1959) 5 Labeo 200 sqq.; Knutel, op. ci t. , note 151, pp. 41 sqq. For a different interpretation, see Daube, (1958) 5 RIDA All sqq.

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came to be provided, at least in cases where one of the parties had visibly relied on the enforceability of the arrangement and had performed his side of it in the expectation that the counterperformance would also be forthcoming. A and В have agreed to swop their sedan chairs. Unless it had been couched in the form of two stipulations, this transaction was not enforceable. Once, however, A had handed over his sedan chair, the situation changed. True: if В did not reciprocate, A could always claim it back. In fact, this was one of the typical instances in which an unjustified enrichment claim was granted (viz. the condictio causa data causa non secuta).159 But A had not given his sedan chair to В merely in order to get it back soon afterwards. He had honoured the arrangement made with В and could now reasonably expect В to do likewise. It is in this type of situation that the praetor

intervened ("adiuvandi vel supplendi vel corrigendi iuris civilis gratia",160 as usual) and granted an actio in factum to A.161 It was an

action "on the facts of the case", modelled as closely as possible on one of the existing contractual remedies. "Quod As As de № № [hominem Stichum] emit . . . " was the demonstratio of the formula for the actio empti.162 Use of the technical term "emit" rendered redundant any further specification of what this transaction was about. Exchange was not sale, but it was similar to it. Hence one could conveniently use the actio empti as the basis for the claim and merely modify it by referring to the specific agreement which the parties had concluded. This was done by substituting the terms of this agreement (and in so far: the specific facts of the case) for the term "emit" in the demonstratio of the formula. Since the actio empti (and the other contractual actions used as models for the actiones in factum) were in ius concepta, one also referred to actiones in factum civiles.163 Since the facts of the case (on the basis of which this action was granted) were spelt out at the outset of the formula (they were "prefaced"), the term "actio praescriptis verbis" also came to be used.164 And since, apart from the demonstratio, the formula was identical to that of the actiones empti, venditi, locati or conducti, all these actiones in factum (civiles) or praescriptis verbis were bonae fidei iudicia.165

1=9 Cf. infra, pp. 843 sqq . Apart from that, there was the actio doli (cf. e.g. Paul. D. 19, 5, 5, 3) which, however, also did not aim at enforcement of the agreement between the

parties.

1611 Pap. D. 1, 1, 7, 1.

161Aristo/Iul./Ulp. D. 2, 14, 7, 2.

162Cf. supra, p. 277.

163Lab./Pap. D. 19, 5, 5, 1; Paul. D. 19, 5, 5, 2; Max Kascr, "Oporterc und ius civile",

(1966) 83 ZSS 37 sqq.

164 D. 19, 5; C. 4, 64; Kaser, RPr II, pp. 419 sqq. Cf also James B. Thayer, "Actio Praescriptis verbis", (1944-45) 19 Tulan? I_R 62 sqq.; most recently, cf. Karlheinz Misera, "Julian-Afrikan D. 19, 5, 24. Ein Beitrag zu 'agere praescriptis verbis' ", in: Sodalitas, Scritti

in onore di Antonio Guarino, vol. VI (1985), pp. 2591 sqq.

165 Kaser, RPr I, p. 582.

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2. Range of transactions

It can no longer be doubted today166 that these remedies already began to be granted in classical law. They brought about, in actual practice, a considerable relaxation of the rigours of the classical scheme of contracts. On the other hand, the contributions of East-Roman school jurisprudence are considerable too, particularly in the field of systematic analysis. To try to disentangle details of the development is difficult, if not impossible. But the end result is clear: by the time of Justinian, a new class of contracts had come to be recognized,167 These contracts were "innominate" in that the actions were not individualized by a specific name168—the demonstratio did not, as we have seen, merely refer to emptio or locatio, but to the specific terms of the arrangement; and they were "real", in that the right to claim counterperformance became enforceable only once performance had been rendered.169.170 Hence the term "innominate real contracts". According to Paul (or rather: Tribonian) D. 19, 5, 5 pr., there were four types; ". . . aut enim do tibi ut des, aut do ut facias, aut facio ut des, aut facio ut facias."171 This classification is of little systematic value, but it shows how broad the range of application was.172 It covered all reciprocal consensual agreements apart from emptio venditio and

166 As has been done for some time; cf. e.g. Pietro de Francisci, XvvaXKayfjM, vol. I (1913) and vol. II (1916), passim; Schulz, CKL, pp. 522 sqq.; but see e.g. Rabel, Gmndzuge, pp. 116 sqq.; Buckland/ Stein, p. 522; Jors/Kunkel/Wenger, pp. 243 sqq.; Biondi, op. cit., note 5, pp. 85 sqq., 101 sqq.; Kaser, RPr I, pp. 580 sqq.; Raimondo Santoro, "II contratto nel pensiero di Labeone", (1983) 37 Annali Palermo 71 sqq.; Honsell/Mayer-Maly/Selb, PP. 340 sqq.

On the question of how the innominate contracts fitted into Roman contractual theory, cf. Geoffrey MacCormack, "Contractual Theory and the Innominate Contracts", (1985) 51 SDHI 131 sqq.; but see Alberto Burdese, "Ancora in tema di contratti innominati", (1986) 52 SDHI 442 sqq.

168This notion already appears in Ulp. D. 2, 14, 1, 4; Ulp. D. 2, 14, 7, 1.

169Si milar to the cont racts re, there had to be "rei interventio", i n the sense that something had to happen apart from the consent of the parties. Only here it was part performance, there performance (the real contracts were unilateral!), here a rendering of services or a transfer of an object, there only the latter.

170"In English legal terms, they were contracts made binding on executed consideration"

(Thomas, TRL, p. 311).

171 On the whole fragment D. 19, 5, 5, see Paul Collinet, "Le Fr. 5, Dig. 19, 5 De Praescr. Verbis et in F. Act.: Application de la Methode critique de Decomposition des Textes", :n:

Festschriffjur Paul Koschaker, vol. I (1939), pp. 70 sqq.; idem, La genese du digeste, du code et des institutions dejustinien (1952), pp. 182 sqq. The fourfold subdivision (do, ut des; facio, ut facias; facio, ut des; do, ut facias) is, incidentally, referred to by Blackstone, Commentaries, vol. II, pp. 44 sq., not, however, in the context of innominate real contracts, but in order to discuss the concept of "valuable consideration"; cf. Nikolaus Benke, "No inefficacy arises merely from the naked promise", (1987) 14 Ius Commune 39 sqq.

172 It is, however, not exhaustive; cf, for example, Kaser, RPr II, pp. 420 sq. Post-classical jurisprudence conceived of the actio praescriptis verbis as a (subsidiary) actio generalis. The innominate contracts "constitute the nearest approach that Roman law made to a generalized system of contract" (Thomas, TRL, p. 311). For a detailed analysis, see De Francisci, op. cit., note 166, vol. I, pp. 85 sqq.; cf. also Santoro, (1983) 37 Annali Palermo 95 sqq. and passim.

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locatio conductio, no matter whether performance or counterperformance consisted in dare (aliquid) or facere (aliquid).

"Et si quidem pecuniam dem, ut rem accipiam, emptio et venditio est: sin autem rem do, ut rem accipiam, quia non placet permutationem rerum emptionem esse, dubium non est nasci civilem obligationem, in qua actione id veniet, non ut reddas quod accepehs, sed ut damneris mihi, quanti interest mea illud de quo convenit accipere."173

This is permutatio (exchange), and it was an innominate real contract of the type of do ut des. If one of the parties had performed and the other was unwilling to counterperform, an action was granted; and the aim of this action was not merely a restitutionary one, but it was designed to put the plaintiff in the position in which he would have been had the bargain been completed. "[D]edi tibi Stichum, ut Pamphilum manumittas" would be an example of do ut facias,174 "si pacti sumus, .

. . ut tu in meo, ego in tuo solo aedificem"175 of facio ut facias. Many more could be added.176 Particularly in close-knit agricultural communities it was probably not a rare occurrence for neighbouring farmers to "borrow" each other's oxen in order to plough their fields,177 to work in each other's vineyards during the time of vintage (both cases of facio ut facias) or to remunerate certain services by payment in kind (facio ut des or do ut facias). No distinctions appear to have been drawn between these various "innominate" transactions; all were enforceable, under the same circumstances, by the same type of action.

3. Aestimatum

There was, however, one exception. One transaction which could otherwise have fallen under the actio praescriptis verbis too seems to have acquired such a degree of typicality already at an early stage that it was singled out by the praetor and "clothed" with a specific action. This was the actio de aestimato,178 and it was proposed in the edict, according to Ulpianus

"tollendae dubitationis gratia: fuit enim magis dubitatum, cum res aestimata vendenda datur, utrum ex vendito sit actio propter aestimationem, an ex locato,

173Paul. D. 19, 5, 5, 1.

174Ulp. D. 2, 14, 7, 2.

175Paul. D. 19, 5, 5, 4.

176Cf. e.g. Afr. D. 19, 5, 24, dealing with a transaction of the type of do ut facias

containing elements of mutuum and mandatum: Misera, Scritti Guarino, vol. VI, pp. 2591 sqq. For a recent discussion of further texts, see MacCormack, (1985) 51 SDHI134 sqq.; cf. also the comprehensive analysis by De Francisci, op. cit., note 166, vol. I, pp. 105 sqq.

^7 Cf. supra, p. 355.

178 Ulp, D. 19, 3, 1; De Francisci, op. cit., note 166, vol. I, pp. 85 sqq; W.W. Buckland, "Aestimatum", (1927) 43 LQR 74 sqq.; idem, "Aestimatum", (1932) 48 LQR 495 sqq.; Buckland/Stein, pp. 522 sqq.; Thayer, (1944-45) 19 Tulane LR 63 sqq.; Kudret Ayiter, "The Aestimatum Contract", in: J.E. Spruit (ed.), Maior vigintt quitique annis, Essays in commemoration of the sixth lustrum of the Institute for Legal History of the University of Utrecht

(1979), pp. 22 sqq.

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quasi rein vendendam locasse videor, an ex conducto, quasi operas conduxissem, an mandati melius itaque visum est hanc actionem proponi".179

We are dealing here with a transaction called aestimatum. Goods are given to a person (usually a pedlar), and they are estimated (aestimare) at a fixed amount. Within a certain time, the recipient either has to pay the amount agreed upon or to return the goods. The real aim of this transaction was to give the pedlar some time within which to try to sell the goods. Whatever he received over and above the estimated sum was his. Aestimatum thus combined elements of emptio venditio, locatio conductio (operis), mandatum and even societas.180 Hence the necessity to introduce a special action if some kind of recognition was to be given to this type of arrangement. The structure of the actio de aestimato resembled that of any other actio praescriptis verbis; in particular, it was based on good faith and became available only with the handing over of the goods to the person who was supposed to sell them.

There were other "innominate contracts" which by the time of Justinian had become so well established as to have their own names: permutatio has already been referred to repeatedly;181 transactio and precarium may be added at this stage.182 But none of them came to be individualized to the extent that a special action was created; actiones praescriptis verbis were available in all these cases.

4. Innominate contracts and the contractual scheme

All in all, it will have become clear that the advent of the innominate contracts entailed a fairly major inroad into, but not a complete abandonment of the rule ex nudo pacto non oritur actio.183 A whole variety of consensual arrangements, of pacta in the broad sense of the word, had become legally recognized; but this recognition depended, first of all, on the fact that one of the parties had already fulfilled his side

179D. 19, 3, 1 pr.

180Cf., too, Ulp. D. 19, 5, 13 pr.

181Cf. e.g. the Digest title 19, 4 ("De rerum permutatione").

182Buckland/Stein, pp. 524 sqq.; Thomas, TRL, pp. 314 sq.; Kaser, RPrll, pp. 407,445; more specifically on transactio, cf. Maria Emilia Peterlongo, La transazione nel diritto romano

(1936); Aldo Schiavone, Studi sulie logiche deigiuristi romani. "Nova negotia" e "transactio" da Labeone a Ulpiano (1971), pp. 7 sqq., 163 sqq.; Friedrich Ebel, Berichtung, transactio und

Vergkich (1978), pp. 50 sqq., who also deals specifically with the reception and post-reception development of transactio in the German ius commune; Karoly Visky, "Les regies du droit romain relatives aux transactions judiciaires et extrajudiciaires a la fin de l'epoque classique", (1983—84) 12 Index 87 sqq.; on the condictio ob transactionem, see Fritz Sturm, Studi in onore di Cesare Sanjilippo, vol. Ill (1983), pp. 627 sqq. On precarium cf. Pierpaolo Zamorani, Precario habere (1969); Max Kaser, "Zur Geschichte des precarium", (1972) 89 ZSS 94 sqq.

1Ю With the general recognition of the enforceability of all kinds of pacts (also "naked" ones), the actio pracscriptis verbis (and also the actio aestimatoria) became, of course, redundant ("inutilis et in desuetudinem abiit": Groenewegen, Tractatus de kgibus abrogatis, Digest. Lib. XIX, Titt. Ill, V). On the treatment of innominate contracts by glossators and commentators, cf. Jean-Pierre Baud, "Contrats nommes et contrats innommes en droit savant", (1976) 19 Studia Gratiana 31 sqq.

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of the arrangement; and secondly, this performance had to be intended to elicit a counterperformance. The innominate contracts, in other words, were modelled on the example of the contracts re184 and they were confined to "synallagmatic" relationships.185 Thirdly, their binding character was undermined, to some extent, by virtue of the fact that the condictio causa data causa non secuta remained available.186 Having rendered performance, a party to an innominate contract could therefore choose whether to demand counterperformance or restoration. Thus, in effect, he had the right at any time to cancel the arrangement.

VI. TOWARDS A GENERAL LAW OF CONTRACT BASED ON CONSENT

1. Contract and pacta in the Corpus Juris Civilis

To sum up: What the glossators found when they started to work their way through the Digest was not a law of contract(s) based on any neat and rational system. On the one hand, there was the rule of "nuda pactio obligationem non park". But, on the other hand, there was a whole variety of agreements which had in one way or another become legally recognized; having grown up historically, they now formed a somewhat haphazard lot. First, there were the contracts, i.e. those obligatory transactions which had a proper name (". . . transeunt in proprium nomen . . .").187 Then there were the contractus innominati (or "anonyma synallagmata"); but some of them had actually acquired individual names (permutatio, aestimatum, transactio, precarium). Furthermore, consensual agreements were enforceable if they had been attached to one of the recognized contracts and had been concluded at one and the same time as the main contract (pacta in continent! adiecta). Then, again, there were two groups of agreements which were not classified as contracts but which were nevertheless enforceable: constitutum, receptum arbitri and receptum nautarum, cauponum, stabulariorum on the one hand, and those of which Paulus said: ". . .

1S4 However, they were not merely an extension or generalization of the contracts re. for the nodon of a quid pro quo was absent in the latter. On the relationship between contracts re and innominate real contracts, cf., most recently, MacCormack, (1985) 51 SDH1131 sqq.

18э The term "avva.Wa-^fi.a." appears in Lab./Ulp. D. 50, 16, 19 and in Aristo/Ulp. D. 2, 14, 7, 2, but was not yet used as the terminus technicus that we know in modern law (hence the inverted commas); for details cf. Bcnohr, Synallagma, passim; further: Constantm Despotopoulos, "La notion de synallagma chez Aristote", (1968) 13 Archives de philosophie du droit 115 sqq.; Schiavone, op. cit., note 182, pp. 37 sqq,.; Werner Macheiner, "Zu den Anfangen des Kontraktssystems", in: Festyabe fiir Arnold Herdtitczka (1972), pp. 172 sqq.; Santoro, (1983) 37 Annali Palermo 7 sqq., 35 sqq. (on D. 50, 16, 19) and 207 sqq., 277 sqq. (on D. 2, 14, 7, 2); Arnaldo Biscardi, "Quod Gracci synallagma vocant", (1983) 29 Labeo

127 sqq.; MacCormack, (1985) 51 SDHI 138 sqq. 18(1 Cf. e.g. Paul. D. 19, 5, 5, 1.

187 Uip. D. 2, 14, 7, 1.

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ex pacto actio nascitur . . ., quotiens lege vel senatus consulto adiuvatur"188 on the other: donatio, compromissum, dotis promissio and some others.189 Other informal arrangements which did not fall into these categories could be raised by way of defence; apart from that they could at least be regarded as obligationes naturales.

2. Pacta vestita and pacta nuda

How could all this be brought into a rational scheme? The glossators, first of all, tried to achieve some terminological clarity.190 They proceeded from the definition given by Ulpianus ("Pactum . . . est pactio duorum pluriumve in idem placitum et consensus")191 but specified that the parties had to have agreed "in idem dandum vel, faciendum".192 Thus for them "pactum" was the general term comprising all agreements between two or more parties aimed at creating obligations.193 Depending on whether these obligations were merely natural or whether they were enforceable, a distinction was drawn between pacta nuda and pacta vestita (literally: pacts which are clothed). As a result, the Roman contracts now fell into the group of pacta vestita: "Vestitur autem pactum sex modis: re, verbis, consensu, literis, contractus cohaerentia, rei interventu."194 The first four garments were obviously taken from Gaius* classification of contracts,195 the last two refer to the pacta adiecta196 and the innominate real contracts. Accursius added the vestimentum legis auxilio ("Sed quando ex nudo pacto datur actio: potest dici vestitum legis auxilio"),197 thus moving the pacta praetoria and legitima from the

18Я D. 2, 14, 6.

1Я9 Cf. e.g. Paul. D. 22, 1, 30; Scaev. D. 22, 2, 5, 1; C. 4, 32, П (all relating certain to exceptional cases of informal promises of interest; interpolated?). On these texts cf. Kaser, RPr I, p. 498, n. 37; RPr 11, p. 371, n. 17; also (on the Scaevola text, dealing with fenus nauticum) Wieslaw Litewski, "Romischcs Secdarlehen", (1973) 24 lura 152 sqq., 165 sqq., and supra, p. 182, note 179 and p. 187.

190 For details, see Hermann Dilcher, "Dcr Typenzwang im mittelalterlichen Vertragsrecht" (I960) 77 ZSS 273 sqq.

191D . 2, 14, 1, 1.

192Azo, Summa Codicis, Lib. II, Rubrica De Pactis, 1 ("Si enim ego et tu consentiamus:

puta quod Socrates sit lapis, non est pactum").

19:5 The commentators preferred "conventio" as the nomen generale; cf. Nanz,

Vertragsbegriff, p. 45.

194Azo, Summa Codicis, Lib. II, Rubrica De Pactis, 15.

195The vestimentum "consensus" presented a specific difficulty: why did consensus give rise to an action only in the case of the consensual contracts and not also as far as pacta nuda were concerned (they are, after all, also based on consensus!)? Accursius (gl. Quinimo ad D. 2, 14, 7, 5) dismissed the problem in a rather playful manner: "Sed videtur quod nullum pactum sit nudum: cum quodlibet habeat in se consensum: unde vestiri consensu videtur . . .

Respond, elegans, et tenuis vestis est consensus, quae non datur nisi certis contractibus enumeratis . . . qui cum sint favorabiles, et pingues, et calidi, levi veste vestiuntur."

196On these see specifically Pietro Vaccari, "Pactum vestitur contractus cohaerentia. La concezione dei patti aggiunti nella dottrina dei glossatori", in: Scritti di storia del diriito privato

(1956), pp. 233 sqq.

197 Gl. Legitima ad D. 2, 14, 6.

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increasingly uncomfortable area of (irregular) pacta nuda198 into the already rather densely populated haven of the pacta vestita. It was obvious from this system that pacta vestita were now very much the rule; the few remaining unenforceable pacta nuda appeared as something of an anomaly; and seeing that vestments were available so liberally, they were bound, sooner or later, to find a charitable

champion who was prepared to save them too from the chill of death.199

As far as contractual theory is concerned, recognition of this process took its time. Too imposing was the authority of the Roman principle of "nuda pactio obligationem non parit". That the French humanists, for instance, should have been inclined to abandon it, was not to be expected.200 But it continued to be asserted until well into the 17th century, though more and more sporadically. Simon van Leeuwen, for instance, leaves no doubt:

"Quae nuda Conventio seu pactum nudum, licet revera et proprie pactum sit, et quam maxime serio et deliberate) animo ineatur, earn tamen vim non habet, ut ex eo actio detur. Hinc vulgaris regula: Ex nudo pacto non datur actio."

And he adds: "Quod et in praxi est receptum."201 But this is demonstrably wrong. Nearly all the other contemporary RomanDutch writers concede that, whatever the position in Roman law might have been, "moribus hodiernis" or "consuetudine nostra" nuda pacta were regarded as enforceable.202 From about the 18th century onwards, this was no longer disputed.203 "Ex nudo pacto oritur actio" was and

198 " . . . nisi mirabiliter hoc in quibusdam casibus accidat, in quibus casibus nudum pactum parit actione m: ut in donatione ": Az o, Su mma Co dic is, Lib. I I, Rubrica De Pactis, 14.

199 Az o's vivid description of the way in which pacta adiecta and innominate re al contracts be c o me clothe d is qu ote d b y Ric c ob o no/ Ke rr W ylie / Be in art, p. 10 ; it full y e xpl oits the g a r m e n t m e t a p h o r : ". . . se d c u m n a t u m e st a n t e e t r e t r o a s p i c it e t o c u l i s a p e r it a n praecesserit vel sequt possit vel statim insit aliquis contractus cuius variis et grisiis pennis seu ve stibus induatur; ut bore am rabrie mque proce llae e xpellat; et suum suo domino in age ndo

auxilium pr ae be at . "

200 C f. e . g. F r a n ci s c u s D u a re n u s , F r a n ci s c u s C o n n a n u s , j a c o b u s C u j a ci u s a n d H u go D onellus, as discusse d by Se uffe rt, op. cit ., note 31, pp. 108 sqq.; N anz , Ve rtragsbeg riff, pp. 65 sqq. But cf. also alre ad y Carolus M olinae us, "Com me ntarius in Codice m", Lib. II ,

in: ide m, Tracta tus quatuor ( Lugduni 1748), Cap. VI I, 6; cf. furthe r Coe nraad Visse r, "T he Principle pacta se rvanda sunt in Roman and Roman-Dutch Law, With Spe cific Re fe re nce to Contracts in Restraint of T rade ", ( 1984) 101 S AL) 652 sqq.; Joube rt, Contract, pp. 27 sqq.

and, particularly, N anz, Vertragsbegriff, pp. 95 sqq.

203 Cf. e. g. Samue l Stryk, U sus modemus pandectarum, Lib. II, Tit. XIV, § 1; Gluck, vol. 4, pp. 279 sqq.; Pothier, Traite des obligations, n. 3; Windscheid/Kipp, § 312; Se uffe rt, op. c it . , n o te 3 1 , p p . 1 3 0 s q q . T he f ir st a n d m os t i nf l ue nt i al w r ite r o f t he u s u s m o d e m us pande ctarum to assert this principle was M atthaeus Wese nbe cius (1531-86); cf. the quotation

Vertragsbegriff, pp. 85 sqq.

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remained the general rule, or, as it was also often expressed: "pacta sunt servanda"204—(all) pacts have to be honoured.205

3. The contribution of (commercial) practice

What were the decisive forces behind this change of attitude? First of all, in actual practice the rule of "nuda pactio obligationem non parit"

began to be eroded virtually as soon as it had been resurrected from the pages of the Digest.206 Already by the end of the Middle Ages, every

informal agreement had, for all practical purposes, become legally binding.207 The international lex Mercatoria was of considerable importance in this respect:

". . . in curia mcrcatorum, ubi de negotio potest decidi bona aequitate . . . non potest opponi ista exceptio, non intervenit stipulatio, sed pactum nudum fuit",

to quote the words of Bartolus;208 the fact that the formalities of a stipulation had not been observed could not be raised against a pactum nudum. The consequence was spelt out clearly by Bartolus' pupil

Baldus: "Ex pacto etiam nudo agunt mercatores, et numularii inter se. . . .*'209 In the states founded by the Crusaders "outremer" the

maxim "convenant vainc hi" was applied;210 it is based on a generalization of Ulp. D. 50, 17, 23 ("legem enim contractus dedit") and influenced, in turn (post-humanistic) contractual theory in France

down to the code civil {"Les conventions Ugalementformees tiennent lieu de hi a ceux qui les ont faites": art. 1134).211 In the medieval French and

Italian "pratique coutumier", too, consensualism seems to have gained

2(14 For the origin of this maxim cf. infra, pp. 543, 576.

2(to The most recent account of the historical development can be found in Klaus-Peter Nanz,

Die Entstehung des allgemeinen Vertragsbegriffs im 16. bis 18. Jahrhundert (1985), pp. 5 sqq., 31 sqq. For a concise and modern survey cf. the discussion and the texts in Robert Feenstra, Margrcet Ahsmann, Contract. Aspecten van de begrippen contract en contractsvrijheid in historisch perspectief (1980), pp. 1 sqq., 33 sqq. Cf. also A. Steinwenter, "Die Vertragstreue im burgerlichen Recht", 1950Juristische Blatter 173 sqq., 197sqq.;Johannes Barmann, "Pacta sunt servanda. Considerations sur l'histoirc du contrat consensuel", (1961) 13 RIDC 18 sqq.; Coenraad Visser (1984) 101 SAL] 641 sqq.

Yason de Mayno listed 16 exceptions, Andreas ab Exea, in a work on Pacta (1542), mentions no fewer than 67 exceptions (cf. Joubert, Contract, p. 27, n. 6). On the pactum geminatum—one of the most important enforceable pacta created during the Middle Ages—cf. supra, p. 513. Clearly, the problem of the unenforceability of pacta nuda was not an enormously important one.

207Hermann Dilcher, (1960) 77 ZSS 302.

208Commentaria, D. 17, 1, 48, 1, § Quintus Mucius.

209Commentaria in Decretales, I, Rubr. De pactis, Cap. I, n. 11; further Norbert Horn, Aequitas in den Lehren des Baldus (1968), pp. 90 sq., 189 sqq. This exception to the rigour of the Roman law was based on the "aequitas mercatoria" ("domus mercatorum debet esse domus vcritatis et aequitatis": Angelus Aretinus; on the aequitas mercatoria in general, see

Wilhelm Endcmann, "Beitrage zur Kenntnis des Handelsrechts im Mittelalter", (1862) 5 ZHR 362 sqq.). Another transaction which developed in medieval commercial practice as a successor to the Roman stipulation was the bill of exchange: an abstract obligatio litteris.

Cf. Endemann, Studien, vol. I, pp. 75 sqq.

21(1 Cf. F. Spies, De {'observation des simples conventions en droit canonique (1928), pp. 150 sqq.

"и Cf. also art. 1374 BW ("Alle wettiglijk gemaakte overeenkomsten strekken dengenen die dezelve hebben aangegaan tot wet") and Feenstra/Ahsmann, op. cit., note 205, pp. 5 sq.

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