!!Экзамен зачет 2023 год / The Law of Obligations

them, essentially meant an instrument which testified to the conclusion of a stipulation without, however, mentioning the cause. If, according to D. 44, 4, 2, 3, the exceptio doli was available in such a case, this meant that the document (and with it: the stipulation) was rendered invalid. Or, to put the same idea positively: there had to be a causa for a valid stipulation, and this causa had to be expressly stated in the written document.

3. The scholastic doctrine of causation

These were two of the most important bricks available to the medieval lawyers.29 The mortar was the scholastic doctrine of causation. Every effect, so the scholastics argued, is dependent upon its reason (causa), and causa is that without which a thing cannot exist: "Illud est proprie causa alicuius, sine quo esse non potest: omnis enim effectus dependet a sua causa."30 According to St. Thomas Aquinas (and, ultimately, Aristotle), there are four kinds of causes: formalis, materialis, efficiens and finalis.31 Obviously, it was attractive, particularly for the canon lawyers and the commentators, to apply this scheme to the law of contracts and thus to extend the concept of causa as they found it in the Corpus Juris Civilis. If everything is based on a cause, so must contracts be. Baldus appears to have been the first to draw the consequences.32 Not only stipulations, all obligatory contracts are (must be) based on a specific causa. But whilst the former receive their causa from outside, the "nominate" contracts carry it within themselves:

". . . stipulatio est contractus aliundc tamen causandus, quod non est in aliis contractibus specificatis, ut in locatione, emptione et venditione etc., qui sunt causa sui ipsius."33

4. Causa as an extra piece of "garment"

The concept of causa, under these circumstances, could, of course, no longer be confined to datio vel factum or to a negotium antecedens (as had been the case when the glossators had discussed innominate real contracts and stipulations);34 every causa extrinseca (that is, either

29Cf. further Riccobono/Кегг Wylie/Beinart, pp. 123 sqq.; S6llner, (I960) 77 ZSS 219 sqq.; on causa and synallagma cf., most recently, Raimondo Santoro, "II contratto nel pensicro di Labeonc", (1983) 37 Annali Palermo 221 sqq.

30St. Thomas Aquinas, Summa theologiae, Tcrtia Pars, q. 86, art. 6.

31Summa theologiae, e.g. Prima Secundae, q. 72, art. 3. Forma and materia were grouped together as causae intrinsicac as opposed to the causae extrinsicae, (i.e. the causae efficientes and finales). Cf. further e.g. Sollner, (1960) 77 ZSS 183 sqq.; Gerhard Ottc, Dialektik und Jurisprudenz (1971), pp. 193 sqq.

32Sollner, (1960) 77 ZSS 236; cf. also Barton, (1966) 34 TR 59 sqq.

33Ad С 4, 30, 13, n. 23.

34For details, see Sollner, (1960) 77 ZSS 219 sqq., 223, In the case of stipulations, the document had to refer to an existing legally enforceable obligation. This was the negotium antecedens, which the glossators referred to as the causa stipulationis; the sources most often quoted in this context were C. 4, 30, 13 and Paul. D. 22, 3, 25, 4. The situation was thus very similar to the well-known concept of a iusta causa traditionis. Paul. D. 41, 1, 31 pr.

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finalis or effidens) was sufficient. In particular, this entailed that even a causa impulsiva (that is, one which is "non cogens, sed persuadens", a reasonable motive as opposed to a pre-existing obligation)35 could give rise to a binding obligation.36 Inevitably, the next step was to transfer these ideas to pacta:

"Ubi non est causa, ibi non est causatum, et ideo ex pacto nudo non insurgit actio, quia actio est quoddam causatum, ergo non potest sine causa oriri."37

Because there is no causa, a (bare) pact cannot beget an action. Conversely, therefore, if, and as long as, a (bare) pact is based on a causa, it may in fact be enforceable! The doctrine of causa could therefore be used as an ingenious way to bridge the rift that had developed between the legists and the canonists. The legists, as we have seen, distinguished between (enforceable) pacta vestita and (unenforceable) pacta nuda.38 The canonists, on the other hand, were prepared to grant an action even on the basis of a pactum nudum. This was, however, justifiable only if the parties had seriously intended to enter into legal relations, and that in turn was ensured by generalizing the causa requirement.39 If one therefore wanted to translate the situation under the canon law into the terminology developed by the glossators, one merely had to refer to causa as an extra piece of garment,40 with which the canonists—charitable as could be expected—were prepared to save a poor and naked pactum from the chill of death. At least in theory and pro forma it was therefore possible to claim that the rule of ex nudo pacto non oritur actio still reigned supreme.

At the same time, however, a terminological ambiguity gained ground, which often made it very difficult to identify the position of individual authors; for the term "nudum pactum" came to be used not only where an informal agreement was not clothed by one of the traditional vestimenta but also in the sense of a pactum nudum a causa. Thus, for instance, Jason de Mayno still recognized the principle of ex nudo pacto non oritur actio (although he detailed no fewer than 16 limitationes), but confounded the doctrine of the vestimenta pactorum with the causa theory when he said: "[S]ed pactum nudum dicitur, cui non subest causa."41 This is also the key to resolving the apparent contradiction in the works of Ulrich Zasius. If he still emphasized that

states: "Numquam nuda traditio transfert dominium, sed ita, si venditio aut aliqua lusta causa praecesserit, propter quam traditio sequeretur"; on which the gloss (gl. lusta causa) remarks: ". . . idem in promissore per stipulationem. . . ." 35 Baldus, adC. 4, 30, 13, n.

22.

36Sollner, (1960) 77 ZSS 249; contra: Barton, (1966) 34 TR 60 sqq.

37Baldus, Commentaria in Decretates, I, De Pactis, n. 14.

38Supra, pp. 538 sq.

39Argument: if a causa was required even for the validity of a stipulation, the same had to apply, a fortiori, to pacta.

40Baldus, Commentaria in Decretates, I, De Pactis, nn. 4 sq. (causa as vestimentum); cf. also Norbert Horn, Aequitas in den Lehren des Baldus (1968), pp. 187 sqq.

41Commentaria, ad D. 2, 14, 7, 4, n. 1.

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bare pacts were not actionable,42 he meant pacta without a causa; and this is entirely in accordance with the famous rule of the Freiburger Stadtrecht (drafted by Zasius): "Wer bedechtlich zusagt, der sol es halten." For this is what causa meant: the pactum must have been made "bedechtlich" (deliberately) or, as others formulated it in Latin, serio et deliberate initum.43

5. The decline of causa

By the time of the usus modernus pandectarum, causa had played out its historically most important role: namely that of facilitating the transition from a closed shop of (enforceable) pacta vestita to the principle of modern law that every agreement begets an action.44 That a contract, in order to be valid, must have been seriously intended by the parties is a matter of course. One does not really need causa as an independent requirement to call attention to this trivial point. Thus, amongst the German authors of the 17th and 18th centuries, both the term and the idea of a causa disappeared from the definition of contract, and the problem of whether the parties had indeed seriously and deliberately entered legal relations was shifted into the field of procedure and evidence.45 In France and Italy a causa continued to be required as an element essential for the validity of contracts. "Tout engagement doit avoir une cause honnete" said Pothier,46 and from here, as usual, the principle filtered through into the code civil. But it has been questioned, time and again, whether this "conceptual hippogriff"47 serves a specific and indispensable function in the law of contract.48 If it is correct that the term "causa" simply refers to the content of the contract as a whole,49 it might just as well be jettisoned. For then there is no difference between, for instance, a statement to the effect that an unlawful contract is void and—this is what the code civil actually declares50—that a contract without lawful cause is void.

42 Cf. Seuffert, op. cit., note 17, pp. 96 sqq.

4 Cf. e.g. Wesenbecius, Comtnentarii in Pandectas, Lib. II, Tit. XIV, n. 10; Wissenbach,

Exercitationes, Disp, IX, 35; Voet, Cammentarius ad Pandectas, Lib. II, Tit, XIV, IX; Stryk, Usus modernus pandectarum. Lib. II, Tit. XIV, § 1.

44 Cf. also John P. Dawson, Gifts and Promises (1980), p. 114 ("[cause] served as a catch-word in the long campaign, led by the canonists, to expand the range of enforceable promises. . . . In the gallery of ideas that have helped to liberate thought it therefore deserves a small corner located out in a distant wing").

45 Coing, p. 403. Lord Mansfield (unsuccesfully) tried the same with regard to the doctrine of consideration: Pillans v. Van Mierop (1765) 3 Burr 1663 sqq.; cf. supra, p. 505, note 170.

4(1 Pothier, Traite des obligations, n. 42.

47Zweigert/Kotz/Weir, 'p. 66.

48Cf. e.g. E. Lorenzen, "Causa and Consideration in Contracts", (1919) 28 Yale LJ 621 ("There is in reality no definable 'doctrine' of causa. The term 'causa' includes a variety of notions which may equally well be derived from the nature of the juristic act and from considerations of equity" (p. 646)) and, more recently, Dawson, op. cit., note 44, p. 114 (". . . in truth [causa] has no meaningful functions at all").

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6. Causa and consideration in English law

Finally, and perhaps most importantly, the requirement of causa became part and parcel of the English common law and survives, to this day, in the form of the doctrine of consideration.51 It is, in fact, one of the central and most characteristic features of the English law of contract; and also one of its most problematic ones. The relationship with other core concepts of contractual liability (such as offer and acceptance) is strained and uneasy, to say the least, but so far consideration—like cause in France—has survived with extraordinary tenacity the attacks of all those critics who have questioned its utility.52 In a certain sense, the doctrine of consideration was little more than "the practical answer to an urgent problem".53 In the course of the 16th century the English courts started to shake off the fetters of the medieval law of contract, a formulary system determined essentially by the catalogue of original writs in the Register (Registrum Brevium).54 The rise of the action of assumpsit (around which the modern English law of contract has grown up) brought about an extension of liability.55 Some sort of criterion was needed to define how far one was prepared to go. Consideration was brought in to ensure that the expansion of the law of contract remained under control; it was designed to delimit the actionability of informal promises by reference to the circumstances in which the promise in question was made.56 The consideration for a promise originally meant the factors which the promisor considered when he promised, the circumstances which motivated his promising.57 Christopher St. German, in his famous dialogue between a doctor of divinity and a student of the common law, put it thus:

"[A]nd of . . . promyses made to a man vpon a certayne consyderacyon, yf the promyse be not agaynst the lawe. As yf A promyse to gyue В XX li. bycause he hathe made hym suche a house or hath lente hym suche a thynge or suche other lyke, I thynke hym bounde to kepe hys promyse. But yf hys promyse be so naked that there is no maner of consyderacyon why yt sholde be made, than I thynke hym not bounde to perfourme it. . . ,"58

"In modern terms", as Professor Simpson comments,59

51Cf. supra, pp. 504 sqq.

52B.S. Markesinis, "Саша and Consideration: A Study in Parallel", (1978) 37 Cambridge LJ 53.

53C.H.S. Fifoot, History and Sources ofthe Common Law. Tort and Contract (1949), p. 399.

54On the Royal Writs and Writ Procedure cf. e.g. R.C. van Caenegem, The Birth ofthe English Common Law (1973), pp. 29 sqq.; for a comparison between the English writ and the Roman action, see Hans Peter, Actio und Writ (1957).

55For all details cf. Simpson, A History ofthe Common Law of Contract. The Rise ofthe

Action of Assumpsit (1975), pp. 199 sqq.; cf. also infra, pp. 777 sqq.

56Simpson, History, pp. 316 sqq. (316, 321).

57Simpson, History, p. 321.

58Second Dialogue, Chapter 24, p. 229 (vol. 91 of the Publications of the Selden Society, 1974, eds. Plucknett and Barton).

59History, p. 322.

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"one can see the plausibility of the theory—a promise which lacks any adequate motive cannot have been serious, and therefore ought not to be taken seriously."

All this by now sounds very familiar to us. The "naked" promise, the reasonable motive (causa impulsiva), the serious (and deliberate) intention of the parties: everything could have been stated in similar terms by many contemporary Continental lawyers. In fact, the very starting point of the whole dilemma, the Roman principle of "ex nudo pacto non oritur actio", had penetrated, almost three centuries before, and through the influence of Azo, into the common law of England.60 This is apparent from a little couplet, quoted by Bracton in his great restatement of the laws and customs of England: "Re, verbis, scripto, consensu, traditione, iunctura vestes sumere pacta solent."61 Now one could again refer to Roman-Canon doctrine; for there the causa requirement had been used to ease the way from ex nudo pacto non oritur actio to ex nudo pacto oritur actio, and had thus been instrumental in solving the very problem with which the common law, too, was faced. The prime agents of this process of assimilation were "Doctor and Student" and the Court of Chancery. St. German's dialogue, which contains a considerable amount of material derived from canon law, became a most popular and influential book;62 the immediate sources of the theory of contract set forth in it have been identified as the Summa Rosella by the Franciscan Baptista de Salis63 and the Summa Angelica, an encyclopedia compiled by another Franciscan, Angelus de Clavassio, doctor utriusque iuris of the University of Bologna.64 And the Chancellors of the Court of Chancery, it must be remembered, down to the time of Henry VIII, were clergymen, usually

60On the concept of "nudum pactum" in England, see Nikolaus Bcnkc, " 'No inefficacy arises merely from the naked promise'", (1987) 14 Ius Commune 1 sqq.

61De Legibus et Consuetudinibus Angliae, f. 16 b (p. 64); cf. also F.W. Maitland, Bracton and Azo (vol. 8 of the Publications of the Selden Society); Paul Vinogradoff, Roman haw in Medieval Europe {2nd ed., 192У), pp. 116. Even earlier than that, we find in the Tractatus de legibus et consuetudinibus regni Angliae (ascribed traditionally to Glanvill) the following enumeration of causae debendi: "Aut enim debetur quid ex causa mutui, aut ex venditionis causa aut ex commodato, aut ex locato, aut ex deposito, aut ex alia iusta debendi causa" (X, 3, p. 117). On the exact meaning and impact of this statement on the treatment of the law of obligations by Glanvill, on the Romanistic background thereto and on Glanvill's (Continental) sources, cf. the study of Horst Kaufmann, "'Causa debendi' und 'causa petendi' bei Glanvill sowie im romischen und kanonischen Recht seiner Zeit", (1961) 17

Traditio 107 sqq.

62Cf. e.g. Simpson, History, pp. 376 sq.

63It was "an encyclopedia with the material arranged under alphabetical headings"; first published under the title Summa Casuum Utilissima, it later became known as the Summa Rosella, "because it was a collection of the most elegant conclusions . . . which could be compared to a garland of sweet-smelling roses which Baptista had gathered together" (Simpson, History, p. 379).

64 Cf. e.g. Paul Vinogradoff, "Reason and Conscience", (1908) 24 LQR 377 sqq.; Simpson, History, pp. 377 sqq.

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well versed in canon law and Roman law; most of them were in fact law graduates of Oxford University.65

". . . [I]t is hardly conceivable, if [their] . . . careers . . . are borne in mind, that as judges in conscience they could avoid deriving ideas from the canon and civil law."6 *'

7.Causa and consideration in South African law

(a)The reception of (he consideration doctrine

Both cause and consideration are refined legal doctrines which have developed, from a common source, in their own individual way. Both of them perform the same function; they serve as a test of seriousness to distinguish between promissory transactions which are binding and those which are not.67 Both of them, however, are highly problematic, and their utility within the modern law of contract has been repeatedly and severely queried. These problems are, of course, exacerbated if a legal system starts confounding the two doctrines. Such a legal system may well, as a result, land in "a nightmare of confusion".68 This is what happened in the history of South African law.69

In the course of the 19th century the term "iusta causa" came to be translated as "consideration"; and the term "consideration", not unnaturally, was very soon equated with the English doctrine of valuable consideration.70 In the first two decades of this century the question whether iusta causa, as understood by the classical RomanDutch lawyers, was or was not distinguishable from the consideration of English law, became the great cause celebre of contractual theory, with the two most influential judges of their time as protagonists. J.G. Kotze, Anthony Trollope's "boy judge",71 the man who shaped the

fiS The law schools of both Oxford and Cambridge followed the continental pattern. The teaching of civil law at Oxford started with the Bologna-trained Italian, Magister Vacarius, in about the middle of the 12th century. Guilelmus de Droghcda (who died around 1245) was appointed "Rcgcns in Lcgibus". For details, see H.G. Richardson, "The Oxford Law School under John", (1941) 57 LQR 319 sqq.

''6 Simpson, History, p. 400. Cf. further, especially William T. Barbour, The History of Contract in Early English Equity (1914), pp. 163 sqq. Generally on the influence of canon law on English law through the medium of the Court of Chancery, see, for example, Helmut Coing, "English Equity and the Denunciatio Evangclica of the Canon Law", (1955) 71 EQR

223 sqq.; John L. Barton, Roman Law in England, his Romanum Medii Aevi, pars V, 13 a, (1971), pp. 50 sqq.

67 Zwcigert/K6tz/Weir, pp. 60 sqq.; d. also e.g. Markcsinis, (1978) 37 LQR 55 (both doctrines "represent a kind of form —a check, one could say, on the unrestricted application of the philosophical doctrine of the autonomy of the will which is prepared to ascribe legally binding effects to the mere coincidence of the wills of the contracting parties").

f* De Vilhers AJA, in: Conradie v. Rossouw 1919 AD 279 at 323.

m On the situation in other mixed legal systems cf. Markesinis, (1978) 37 Cambridge LJ 53 sq. (n. 3).

70 Cf. e.g. Alexander v. Perry (1874) 4 Buch 59 at 61; Matan and Van der Merwe v. Secretan,

Boon & Co. 1880 Foord 94 at 95 sqq.; Tradesmen's Benefit Society v. Du Frees (1887) 5 SC 269

at 272 sqq. The history of the question is reviewed fully by De Vilhers AJA, in Conradie v. Rossouw 1919 AD 279 at 299 sqq.

71 South Africa, vol. II (1878), p. 121.

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early history of the Transvaal Supreme Court, advocated the former position, while Lord De Villiers, who reigned as Chief Justice for 41 years—first of the Cape, then, since its inception, of the Union of South Africa72—took the rule of the "besoedelaar" or "pollutionist".73 In

Rood v. Wallach74 and Mtembu v. Webster75 this clash of judicial opinion came to a head. Five years after Lord De Villiers1 death, the Appellate Division of the Supreme Court finally declined to endorse his view on the matter in the case of Conradie v. Rossouw.76 "A good cause of action can be founded on a promise made seriously and deliberately and with the intention that a lawful obligation should be established": this is how the court defined the causa requirement,77 and it rejected any idea of a reception of the English consideration doctrine.78

(b) lusta causa and Grotius' notion of "redeiicke oorzaecke"

It appears to be clear that Lord De Villiers was wrong in equating causa and consideration.79 It is a far cry from Brother Baptista's garland of sweet-smelling roses to the refined and technical doctrine of consideration worked out over the centuries by the English courts. Continental causa and English consideration have developed in different directions, and the latter never formed part of the Roman-Dutch law of Holland. On the other hand, Kotze80 and his followers were probably not right either.

"It may, indeed, be doubted whether the doctrine of causa really occupied the important place in the Roman-Dutch law which has been assigned to it in modern discussions",

says Lee,81 and this is putting it mildly. Causa as an independent requirement for promissory transactions was on the way out in

72For a comprehensive yet eminently readable biography, see E.A. Walker, Lord de Villiers and His Times (1925).

73On this terminology and on the bellum iuridicum between the so-called purists, antiquarians, pollutionists and pragmatists raging over the nature and the true sources of South African private law cf Rcinhard Zimmermann, "Synthesis in South African Private law: Civil Law, Common Law and Usus Hodicrnus Pandectarum", (1986) 103 SALJ 259

741904 TS 187 sqq.

75(1904) 21 SC 323 sqq.

761919 AD 279 sqq. All three decisions are well worth reading.

77Conradie v. Rossouw 1919 AD 279 (headnote).

7K At 288 sq. and 309 sqq.

79 On other—English—lawyers who "have fallen into the error of treating causa and consideration as if they denote one and the same thing" (amongst them Blackstone, Sir Williams Evans (the translator of Pothier) and Sir Henry Maine), see John G. Kotze, Causa in the Roman and Roman-Dutch Law of Contract (1922), pp. 8 sq. He also quotes Pollock, who glosses over Maine's slip with the following charming observation: "The use of the specially English term Consideration to represent the Roman causa is too dangerous a liberty to be allowed to any lesser man than Maine."

H" Cf. particularly his monograph on "Causa" in the Roman and Roman-Dutch Law of Contract (1922), passim, e.g. pp. 26, 31, 56; also e.g. Kennedy v, Steenkamp 1936 CPD 113 at 117.

81 Introduction, p. 224.

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Germany, as it was in the Netherlands.82 One of the main sources, always brought up in the debate, is Grotius' Inleiding. We have already referred to the famous passage where he makes mention of the "redelicke oorzaecken".83 But the context in which this term appears is a rather peculiar one. In his Inleiding Grotius distinguishes between obligations arising from toezegging (promise) and from onevenheid (inequality).84 A toezegging is either "uitdruckelick" (express) or "door wetduiding" (implied by law).85 Express promise, in turn, is "door woorden, of schrift", i.e. verbis or litteris.86 Grotius then explains that with regard to express verbal promises the subtleties of Roman law (he uses the word "scherpzinnigheid") no longer have to be complied with; "alle toezegginghen die uit eenighe redelicke oorzaecken geschieden" give rise to a right of action.87 "Redelicke oorzaecke", so he continues,

"werd verstaen zoo wannccr de toezegging oftc beloftc geschied ter schcnk, of dient

tor eenige andere handelinge, 't zy zulcks geschied ten tijde vande handeling ofte daer

пае."HK

One cannot say that Grotius makes it entirely clear what he means. Thus, for instance, he may be taken to attribute significance to the concept of "redelicke oorzaecke" only in the case of express promises (though those of the modern, informal kind): auxiliary (incidental or accessory) transactions89 and gifts.90 More convincing, on balance, seems to be another interpretation. "Redelicke oorzaecke" is used in a very untechnical sense as the basis of every contractual agreement: it indicates that the law recognizes the agreement as reasonable, acceptable and thus enforceable. This is undoubtedly the case, for instance, as far as contracts of sale, hire, etc. are concerned: here, "de grond zelye van de handelinghe heeft een rechtelicke oorzaeck".91 But the promise of a gift and auxiliary pacta, whether concluded in continenti or ex intervallo are reasonable bases for a contractual obligation too.92 This appears to be the special import of III, I, 53.

82 On Roman-Dutch authors, cf. Kotzc, op. cit., note 79, pp. 25 sqq.; Joubert, Contract, pp. 27 sqq.; J.C. Stasscn, "Causa in die Kontraktereg", (1979) 42 THRHR 364 sqq. S3 Cf. supra, p. 549, note 20.

84III, I, 9; III, I, 47. On onevenheid (comprising inter alia enrichment, delict and the real contracts), cf. Ill, I, 15 sqq.

85III, I, 49. On toezegging door wetduiding, cf. Ill, VI.

86III, I, 50. On schriftelicke toezegging, cf. Ill, V.

87III, I, 52.

88III, I, 53.

89Cf. the explanation of the meaning of toezegging welcke dient tot eenige andere handelinge in III, III, 1.

90Stassen, (1979) 42 THRHR 366 sq.

91Inleiding, III, XXX, 14.

92The question arises why Grotius singled out these two situations. The answer may be that all (or nearly all) other pacta were enforceable as a matter of course, i.e. normally as consensual contracts (toezegging door wetduiding; cf. Ill, VI (entitled: "Van overkoming in 't gemeen"). In III, I, 53 Grotius clarifies that even promises of gift and auxiliary (incidental or accessory) agreements were now actionable. In Roman law, both had been enforceable only if couched in the form of a stipulation (the latter also if they had been added by way of

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But whatever the historically correct interpretation may be, in South African law Grotius' statement has contributed considerably to the prevailing confusion. More particularly, it has for a long time prevented courts and legal writers from recognizing that the requirement of iusta causa had in fact become redundant.93 An agreement must be entered into with a serious intention to be bound, and it must not be tainted by illegality or immorality. If these conditions are present, an enforceable contract has come into existence.94 Whether one lumps these two requirements together sub titulo "iusta causa" is a matter of terminology.95 But under a regime of ex nudo pacto oritur actio, neither causa nor iusta causa are separate, additional requirements that have to be met before a contract can be said to have been validly concluded.96

III.CONSENSUS

1.Consent as the basis of contract in modern law

Having looked at two factors—form and causa—which are not essential to the modern concept of contract, we now have to turn our attention to the one which is: consensus. Consent forms the basis of the modern law of contract. But what exactly does that imply? It is obvious, first of all, that not every kind of consent can be relevant. A and В agree that Socrates is a stone,97 or that Socrates is Socrates.98 Clearly, their minds are ad idem, and thus there is consent. But it would be absurd to claim that this agreement can create a contract (or, for that matter, a pactum). Thus, consent between the parties has to

pactum adiectum in continenti). No matter whether these subtleties have been complied with or not, the mere pactum can be regarded (according to Grotius) as a redelicke oorzaecke — counts as a contract — gives rise to an action. Cf., apart from Stassen, (1979) 42 THRHR 366 sq., especially Kotze, op. cit., note 79, pp. 28 sqq.; Lcc, Introduction, pp. 431 sqq., and De Villiers AJA in Conradie v. Rossouw 1919 AD 279 at 314 sqq., all offering somewhat different interpretations. One basic difficulty in understanding the contractual theory of Grotius is that he nowhere clearly states whether (in his view) (I ) all pacts are actionable and

(2) all promises must be based on a iusta causa. Both propositions can merely be inferred. But by still discussing, in a separate chapter, the express verbal contract (i.e. the stipulation of Roman law, although in modern dress), he shows that he has not (or rather: not totally) thrown off the shackles of Roman law (Lee, Introduction, pp. 432 sq.)

93Cf., particularly, Kotze, op. cit., note 79, pp. 25 sqq.

94Cf, particularly, Kotze, op. cit., note 79, pp. 25 sqq.

95Cf, particularly, De Villiers AJA, in his erudite judgment in Conradie v. Rossouw 1919 AD 279 at 298 sqq.

96 Cf. today, for example, Stassen, (1979) 42 THRHR 358 sq.; Joubcrt, Contract, pp. 32 sqq. Neither De Wet en Yeats nor Kerr, The Principles of the Law of Contract (3rd ed., 1982), in their textbooks deal with (iusta) causa as a special requirement for the validity of contracts. Cf further JansenJA, in Saambou-Nasionale Bouvereniging v. Friedman 1979 (3) SA 978 (A) at 990B-993C. A (iusta) causa, however, continues to be required for bills of exchange; cf. s. 25.1 of the (South African) Bills of Exchange Act 34/1964, and F.R. Malan,

Bills of Exchange, Cheques and Promissory Notes in South African Law (1983), pp. 71 sqq.

97Cf the example discussed by Azo, supra, p. 538, note 192.

98Petrus Placentinus, Summa Codicis (Moguntina, 1536), Lib. II, Tit. III.

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relate to performance. This was already very clearly seen by the medieval lawyers; it is necessary

"ut consentiant in idem, scilicet dandum faciendumve ex diversis motibus animorum, postmodum convenientes in quid unum faciendum vel dandum".99

But even where this is so and where, for instance, A wants to hand over his sedan chair to B, and В indeed wishes to receive it from A, the mere agreement as such, that is, the fact that both parties intend one and the same thing, cannot give rise to a binding obligation. This is because it is necessary that these intentions be communicated, in one way or another, between the parties. No specific formalities have to be complied with, but there has to be a declaration. The intention has to be expressed; whether verbally, or in writing or, for instance, by simply nodding one's head, does not matter. As a contract involves (at least) two parties, we have in fact two such declarations of intention. They are normally referred to as offer and acceptance.

This way of analysing the conclusion of contract reveals two specific problem areas which modern legal systems have to grapple with. On the one hand, an offer can sometimes not be accepted immediately. When a contract is concluded inter absentes, for instance by exchange of letters or through a messenger, the two declarations of intention have to be given in succession, and formation of the contract takes some time. The question then arises whether and to what extent the offeror is bound by the offer. What legal effects does the law attach to the offer as an individual declaration of intention, i.e. to the one element of an as yet incomplete transaction?'00 In Germany, the offeror is, as a rule, not able to withdraw his offer.101 Other legal systems decide differently. The English common law, for instance, does not

regard an offer as binding;102 until it has been accepted by the offeree, it may be withdrawn at any time.103

99 Placentinus, loc. at. Cf., much later, also Wolfgang Adam Lauterbach, Collegium theoretico-practicum. Lib. II, Tit. XIV, IV.

irx) For a comparative discussion of this problem, see Zweigert/Kotz/Weir, pp. 27 sqq.; for a very comprehensive comparative investigation of all problems relating to offer and acceptance, sec Rudolf B. Schlesinger, Formation of Contracts, A Study in the Common Core of Legal Systems (2 vols., 1968).

§ 145 BGB; for further details cf. §§ 146 sqq., particularly § 147 II: "An offer made to a person who is not present may be accepted only up to the moment when the offerer may expect to receive an answer under ordinary circumstances." Cf. also § 862 ABGB and Artur Nussbaum, "Comparative Aspects of the Anglo-American Оffer-and-Acceptance Doctrine", (1936) 36 Columbia LR 920 sqq. ("Apparently it was only after the use of mail had become common in the 18th century that the traditional rule (sc. no binding effect to be attributed to an offer) was felt to be unsatisfactory" (p. 923)).

1(12 The reason for this lies in the doctrine of consideration. No consideration is normally given for the offer, and hence the latter cannot bind the offeror. On South African law (where it is also accepted doctrine that an offer can be revoked, even though the doctrine of consideration has been rejected), cf. Ben Beinart, "Offers Stipulating a Period for

Acceptance", 1964 Ada Juridica 200 sqq.; Joubert, Contract, pp. 36 sqq., 42.

1(13 The practical effects of this rule arc to a certain extent modified by the so-called mailbox theory (dating back to Adams v. Lindsell (1818) 1 В & Aid 681 sqq.): the contract is

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