civil. lawson, a common lawyer looks

7/30/2019 Civil. Lawson, A Common Lawyer Looks

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The Thomas M. Cooley Lectureship was estab-lished for the purpose of stimulating legal re-search and presenting its results in the form ofpublic lectures. Thomas M. Cooley, for whomthe lectureship was named, was a member of thefirst faculty of the University of Michigan LawSchool, when it was organized in 1859, and sub-sequently became its Dean. At the time of hisdeath in 1898 he was one of the most distin-guished legal scholars of this country. These lec-tures are made possible through the endowmentfor legal research at the University of Michigan,established by the will of the late William W.Cook, a member of the New York bar and analumnus of the University.of Michigan.

First ~ r i e s The Constitution and Socio-Economic Changeby HENRY ROTTSCHAEFER

Second SeriesSome Problems of Equity

by ZECHARIAH CHAFEE, JR.Third Series

Our Legal System and How It Operatesby BURKE SHARTELFourth Series

Selected Topics on the Law of Tortsby WILLIAM L. PROSSER

Fifth SeriesA Common Lawyer Looks attthe Civil Law

by F. H . LAWSON

A Common Lawyer Looksat the Civil Law

Five lectures delivered at the University of MichiganNovember 16, 17, 18, 19, and 20, 1953

,I '0y,(' r ..

F. H.- LAWSON

With a Forew01'd by HESSEL E. YNTEMA '.

';:)

. / I1

Universitt of Michigan Law SchoolAnn Arbor 1953


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108 A COMMON LAWYER LOOKS AT THE CIVIL LAW

OWNERSHIPThe key to the problem is the nature of ownership. Is

it to be absolute or is it to be relative or qualified? TheRoman Law of the republican and classical periods had nodoubt as to the answer. It was absolute in three ways.First, the title was absolute in the sense that the owner'stitle was not merely better than all others, but the only titleto a thing. A person was either an owner or a non-owner.32Secondly, the owner had the absolute and unrestricted powerof dealing with the thing, except for certain minor restrictions imposed by public law, and above all the absolutepower of alienating it. Thirdly, the object of ownershipwas the actual physical thing, not a right over it. I shallsay no more about absolute title. It has passed into themodern law, though it sometimes causes difficulties,33 and itcan hardly be considered an article of faith. 34 The other twoaspects, which are intimately connected, are much moreimportant and call for elaboration.

The Romans never developed anything like a doctrineof estates, and the classical law would have been hostile toany such doctrine. The basis of the doctrine of estates isthat ownership does not attach to land as such but to anotional entity which can be carved up according to various

., The distinction is not weakened by the existence of bonitary andperegrine ownership and ownership of provincial land, for these were allprotected as though they had been full ownership. Bona fide possessioncauses real difficulties, with which I have tried to deal in Buckland andMcNair, Opt cit., 8488.3J Ibid., 70.M The desire for absolutism has, however, helped to ensure the triumphof registration.

TH E CONTRIBUTION OF ROMAN LAW 109principles, the initial principle being that of time. The landitself can be divided only according to area. Now the wholepoint of the doctrine of estates is to facilitate such carvingup, and the whole point of the carving up is to allow asettlor to prevent permanent alienation of the land whilstpermitting its alienation for limited periods. Common Lawsystems in their most modern periods, especially in England,have made it possible to tie up a capital fund whilst removing all restrictions on the specific parcels of land in whichit may for the time being be invested. But this is a verysophisticated device which is found only in the most rudimentary form in Roman Law 5S and is still unfamiliar andseems a little monstrous to most civilians. 56 In the ancientworld, the problem was whether restrictions should beplaced on the alienation of the physical object; and toattach ownership to the physical object was really to decidein principle against restrictions, just as to attach it to anestate is to decide in principle in their favor. Moreover, theinhibition against such restrictions would be reinforced ifthe ownership was actually identified with the physicalobject. 57 This was in fact the Roman view.

Even Roman Law had to provide for the temporary useof things, especially land and slaves; and the ways in whichthis was done are peculiarly illuminating. There were threeways: a man could let his land to a tenant for, say, fiveyears; he could bequeath it to his widow for life; he couldleave it, say, to his only child as part of his inheritance butsubject to a binding instruction (a fideicommissum) not to

.. In the socalled quasi.usufruct. or life interest in consumable goods.3' See pp. 198-204. infra.at Ownership was regarded as a corporeal thing. like our estates inpossession.

..


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110 A COMMON LAWYER LOOKS AT THE CIVIL LA walienate it but to pass it on to his children as his heirs. Thefirst solution operated only in contract and created a personal right in the tenant, who could be evicted with impunity by a purchaser from his landlord, even if in badfaith, being lef t to his action against his landlord on whatwe should call his implied covenant for quiet enjoyment. 38The second created what was called a usufruct, a real rightwhich was protected against any transferee of the ownership or, as we should say, of the remainder or reversion,or indeed. against any casual intruder. The usufruct couldexist for a term of years but never for longer than the lifeof the beneficiary, and although the enjoyment of the thingcould be sublet, the usufruct itself could not be alienated.

The third solution almost certainly operated as late asthe classical period only in personam, so that while theperson benefited by the gift was under an obligation not toalienate, yet since he was owner any alienation by him,although wrongful, was valid. This was certainly in accordwith the instinct of the republican and classical law, butlater the prohibition against alienation was given a realeffect, though, not against a bona fide purchaser for value.39Thus Roman Law came to speak with two inconsistentvoices. Ownership in principle implied complete power ofalienation, but this could be cut down by a special provisionin the interest of a family, for as long as four generations

One of the most interesting developments in the modern Civil Lawis that by which the purchaser came to be postponed to the lessee. It tookD long time and is hardly complete yet. Cf. Amos and Walton, INTRO-DUCTION TO FRENCH LAW, 104 n.; MANUAL OF GERMAN LAW, 89.

.. The whole process had to be gone through again in Scotland in thesixtenth and sev(,llteenth centuries, ending up in a peculiarly strict systemof u n b a r r a b l ~ entails. The story can be found in a little-known book of1822, SANDFORD ON ENTAILS.

TH E CONTRIBUTION OF ROMAN LA w 11 1/

in justinian's final scheme: This escape clause played a greatpart in the construction of family settlements on the continent so long as entails were allowed and popular with thedominant aristocracies. When aristocracy lost power theessentially absolute character of ownership was reasserted,though with exceptions that for an English real propertylawyer deprive it of much of its logic and force. 4o

USUFRUCT AND OWNERSHIPLet us return to the usufruct, one of the most permanentdevices of Roman Law. As its name shows, it was thought

of as the right to use a thing and appropriate its fruits. 41Although it was used extensively, it seems to have beenrestricted to the family, and the chief mode of creating itwas legacy;42 it was not used to give a real character to anagricultural or house tenancy. Since it could only be vestedin a person living at the time of its creation, no practice ofcreating successive usufructs grew up. The usufruct re-mained essentially a provision for a widow or for someperson who was not expected to need to transfer the thingon death.

As such it seems never to have attained any clear classification in the classical law. It was a real right less thanownership, and later it was brought into the rather strangecompany of servitudes such as easements and called a personal servitude. I t was thought of as a right, though theclassical jurists never quite knew what to make of it. Although it implied the use of a thing, it was not quiteregarded as a right over the thing;43 and at times it was

to See pp. 206.207, infra... In the shape of 11111! it could be cut down to the bare use of a thing.4' Schulz, CLASSICAL ROMAN LAW, 386... Buckland, MAIN INSTITUTIONS OF ROMAN PRIVATE LAW. 145-6.


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112 A COMMON LAWYER LOOKS AT THE CIVIL LAwthought of as part of the ownership, into which it couldmerge without express conveyance to the owner. It was intruth an estate, and even more detached from the physicalobject than an estate is detached from land in our law; forthe Romans felt an inhibition against attributing to theusufructuary possession of the thing he enjoyed. They didindeed find it necessary to afford him a possessory remedyanalogous to that used by a possessor, so that the refusalto assimilate him completely to a possessor seems to showthat there was some intellectual and conceptual barrier be-tween the usufruct and its object.

But the usufruct and its truncated forms were the onlyestates known to Roman Law. As I have already said, theownership of a thing was hardly regarded as a right: it wasthe thing itself; and this was so even if the ownership wasso much cut down in content by the existence of a usufructthat it existed only in remainder or reversion. Nothingcould show better the attachment of the Romans to abso-lute ownership than their refusal to modify it to squarewith the co-existence of the usufruct or the fideicommissum.This refusal has persisted in the modern law, leaving thecivil law of property not only curiously poor in the eyes ofa common lawyer, but also unsystematic, illogical, and in-consistent." But at least the Civil Law has inherited fromRoman Law a clear distinction between real and personalrights; and any common lawyer approaching it must expectto encounter both absolute ownership and usufruct, to-gether with the treatment of capital and income which theRomans elaborated in connection with them.

.. See further pp. 205-206, infra.

TH E CONTRIBUTION OF ROMAN LAw 113CONTRACT

I must devote the rest of this chapter to the Roman Lawof contract, which has not always been fully understood.We know and understand pretty well the separate rules.We have a fairly clear notion of each particular contracttaken in isolation from the others. What is much moreinteresting and less easily grasped is the general structureof the law.

I must first mention a fundamental principle of generalapplication, which at first sight resembles one of the mostfamiliar principles of our own law: a nude pact did notbeget an action. 45 I t was not enough for a person to saythat there had been an agreement between him and theother party. But there was no general positive doctrine likethe doctrine of consideration. I hope before long to showthat the Romans did take a general view of the situation,but any study of their law of contract must start with ageneral sketch of the various contracts.

TH E CLASSIFICATION IN TH E INSTITUTES

The Institutes of Gaius and Justinian classify contracts asreal, verbal, literal, and consensual, an imperfect classifica-tion, for to them must be added certain pacts which werelater made actionable, and also the so-called innominatecontracts, which I shall discuss later. In the real contractsthe obligation arose only when one party handed over athing to the other party. Apart from the loan of money or

.. Ex nudo pacto non oritur actio; nuda pactio non actionem, sedexceptionem parit.


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114 A COMMON LAWYER LOOKS AT TH E CIVIL LAwother things destined to be consumed by use,48 they wereall what we should call bailments, though we must note thatbailment was not a generalized concept in Roman LawYThe contractual element in them was not very important.

The only important verbal contract was the stipulation,a form of contract by question and answer. We may neglectthe literal contract, which was of a formal kind and dis-appeared fairly early. The consensual contracts were madeby bare agreement between the parties and were only fourin number: sale (emptio venditio), hire (locatio conduc-tio), partnership (societas), and mandate (mandatum).

Now the general structure of the law of contract is bestunderstood if we examine the relations between the stipulation and the consensual contracts. The loan of money orother fungibles was probably not thought of originally asa contract, and the other real contracts are late interlopersas contracts. The same is more certainly true of the actionable pacts and the innominate contracts.

TH E STIPULATIONThe stipulation contained in itself two elements in a

remarkably pure state: form and agreement.48 The formwas unusually simple and rational, for it consisted of question and answer, the same principal verb, which until fairlylate had probably to be chosen from a very small number,49being used in both question and answer. This form inevit

Mutuum.., Nor is it in the modern civil law. See also p. 135 infra. Professor de Zulueta used to say that it was the dry bones of contract... C/. Barry Nicholas, "The Form of the Stipulation in Roman Law, I,"69 L. Q. R. 64 et seq.

TH E CONTRIBUTION OF ROMAN LAw 115ably threw the terms of the agreement into the questionand, in consequence, cast upon the promisee the burden ofmaking them precise and, in short, of seeing that he gotwhat he wanted, very much as in a sale of land it is thepurchaser's lawyer who drafts the conveyance and submitsit to the vendor for approval and execution. Almost a cen-tury ago Sir Henry Maine50 emphasized the virtues of theform:"Now, if we reflect for a moment, we shall see that thisobligation to put the promise interrogatively inverts the nat-ural position of the parties, and, by effectually breaking thetenor of the conversation, prevents the attention from glidingover a dangerous pledge. With us, a verbal promise is, gen-erally speaking, to be gathered exclusively from the words ofthe promisor. In old Roman Law, another step was absolutely

required; it was necessary for the promisee, after the agree-ment had been made, to sum up all its terms in a solemninterrogation; and it was of this interrogation, of course, andof the assent to it, that proof had to be given at the trial-not of the promise, which was not in itself binding.unPausing here for a moment, I should like to mention the

peculiarity that although, as must be obvious, the stipulationwas entirely one-sided, in the sense that there was only onepromisor and one promisee, it was not thought of as purepromise but as agreement, in which the promisee must takean active part. This peculiarity has survived the stipulationitself, for at the present day, long after the stipulatory formhas disappeared, the Civil Law systems require the acceptance of all donations. But the insistence on acceptance in

.. ANCIENT LAw (Pollock's ed.), 34041.11 The form also accorded perfectly with a peculiarity of Roman conveyancing, in which it was always the acquirer and not the alienor, whoacted. C/. Buckland and McNair, op. cit., 274.


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118 A COMMON LAWYER LOOKS AT TH E CIVIL LA wThis is to give a slight twist to the argument that brings us,I think, nearer the truth. But the whole truth has not yetbeen told. For this the consensual contracts need to beexamined in greater detail.

RELATION TO CONSIDERATIONIt is natural for a common lawyer to ask what relation the

consensual contracts bore to consideration. All mature lawsknow the distinction between gratuitous promises and onerous contracts, and use it for certain purposes; in all lawsonerous contracts are so much the rule and gratuitouspromises in practice so rare, that problems of considerationarise only in exceptional cases. It is therefore irrelevant toany discussion of consideration in Roman Law that sale,hire, and partnership are all supported by consideration, forconsideration is not a requirement of such contracts, it isan inevitable element. Mandate is thus the test case.

Mandate was a simple direction, given by a mandatorand accepted by a mandatary, to do something, usually forthe benefit of the mandator. The consensual character ofmandate was mitigated by the rules that the mandator couldrevoke the mandate at any time before the mandatary hadbegun to act, and even later provided he took over anyexpenses or liabilities the mandatary had already incurred,but the mandatary could continue to act under the mandateunti l he had notice of revocation. Conversely, the mandatary could renounce the mandate, but could do so withimpunity only if he did so with notice in time for themandator to get the task performed conveniently otherwise:he must not let his mandator down.

TH E CONTRIBUTION OF ROMAN LA w 119Moreover, mandate was in principle gratuitous; and it

always remained gratuitous in the sense that no action on thecontract of mandate could be brought by the mandataryfor remuneration-the mandatary's action was only to in-demnify him for the expenses he had incurred in carryingout the mandate-though in course of time such remuneration usually came to be bargained for and could be recov-ered as an honorarium by a special application to thepraetor in his extraordinary jurisdiction. However, sincemandate was originally and in principle gratuitous, it can-not be brought within the doctrine of consideration: we, inEngland at any rate, treat gratuitous mandate, i. e. the onlymandate in the Roman sense, as unsupported by consideration, and the utmost effect we accord to it is to admit thatit may create a relation between the parties giving rise toa duty of care in the mandatary once he has begun toperform.s8 In other words, for us mandate, if it be any-thing at all, is real, not consensual.59

RANGE OF THE CONSENSUAL CONTRACTSMy second observation concerns Buckland's remark thatthe consensual contracts were "a small but commercially

important group of contracts." The number of the con-tracts was indeed small, but their range immense, muchwider than would appear from their names. At first sightthey would seem to differ from the stipulation as singlepurpose instruments differ from an all-purpose instrument.This is quite false.

.. ct. the very unsatisfactory case of Wilkinson v. Coverdale (1793),1 Esp. 7'5 ... We can afford to leave it real because it rarely occurs in business,and for other purposes we use the trust.


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120 A COMMON LAWYER LOOKS AT THE CIVIL LAwThe scope of sale was indeed always restricted in the

sense that it could only be used for the creation of obliga-tions to transfer things in perpetuity; and in the end, aftera stage when some of the classical jurists wanted to includebarter in it, sale could only be for a price calculated inmoney. But sale, though qualitatively restricted, is alwaysquantitatively the most extensive of contracts, for it is, asProfessor Gutteridge once said, the great master contract,to which so many others, such as security, carriage, insur-ance, and negotiable instruments, are often only ancillary.60

Hire, which at first sight might appear to have beenequally narrow in scope, was really extraordinarily wide, forit included not only the lease of land and buildings andthe hire of goods, not only the relation of master andservant, but also every case where one person put anythingat the temporary disposal of another and money was tochange hands in consequence. Thus it included all bail-ments where there was a payment by either bailor or bailee,and hence all contracts of transportation of passengers orgoods, contracts for the repair of goods, building contracts,and contracts for the manufacture of goods, except wherethe raw materials were entirely supplied by the manufac-turer-in which case the contract was one of sale. I t evenincluded certain types of insurance. In fact, hire comprisedall contracts where one person placed anything, includinghis own services, temporarily at the disposal of another, and

eo C/. Gutteridge, "An International Code of the Law of Sale:' in 14BRITISH YEARBOOK OF INTERNATIONAL LAW (1933), 77: "Buying andselling are the essential elements of international commerce. Carriage,insurance and finance are after all only ancillary to the main purpose ofinterchange of goods."

TH E CONTRIBUTION OF ROMAN LAW 121money was to pass. There was one exception: contracts forliberal services fell not under hire, but under mandate.

Partnership was wider than in our law, for it did notneed to be for profit. It comprised all cases where two ormore parties agreed to pool money or other property, knowl-edge, skill, or experience for a common purpose.

Mandate was in many ways the most remarkable of thesecontracts, for it comprised all cases where one person gra-tuitously undertook to carry out a task imposed on him byanother. The mandatary was bound to act with due dili-gence and care, and the mandator was bound to make goodany expenses which the mandatary had incurred.61 Althoughit is best not to confuse it with agency, one of its mainuses was to constitute the relation of principal and agent.As we have just seen, it was also the contract for liberalservices such as those of an advocate or nurse. It played anessential part in the assignment of obligations and henceformed a necessary link in the very cumbrous substitutewhich Roman Law provided for true agency. But it wasalso used to make contracts of indemnity, and for otherpurposes.

Looked at in this way, the consensual contracts are seento cover almost all the normal operations of Roman busi-ness, except the loan of money and certain types of security.Pledge was for long regarded not as a contract but as a

II With this emphasis on careful performance in return for an indem-nity, it should not be surprising that Roman law admitted, outside truecontract but within quasicontract, the parallel institution of negotiorumgestio, where one person assumed without authority the task of doingsomething necessary or useful in the interest of another. All the require-ments of mandate were present except the instructions of the principal,and the results were almost the same.


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122 A COMMON LAWYER LOOKS AT THE CIVIL LAwmere transfer of possession. For guarantee-and indeed fordonation or gift, which lies outside commerce-the specialform of the stipulation was required. In both, the dangerof victimization and the need for certainty and precisionwere too great to allow purely consensual methods.ISOLATION OF RELATIONS BETWEEN CONTRACTING PARTIES

The third peculiarity of the consensual contracts from thecommon law point of view is that they covered only therelations between the contracting parties, between seller andbuyer, letter and hirer, partner and partner, and mandatorand mandatary. For us-and indeed commonly for moderncivilians-the words sale, hire, partnership, and agency con-jure up questions about the effects of the contracts on thirdparties. The Sale of Goods Act and the Uniform Sales Actinclude sections regulating the passing of property62 andthe position of a bona fide subpurchaser,63 the lease of landcreates a real right in the lessee binding upon third parties,64the Partnership Act is largely concerned with the liabilityof a partner on contracts made by his partner with a thirdparty, while the greater part of the law of agency concernsnot the relation between principal and agent, but betweenprincipal and third party. Of course, all these questionsarose at Rome also and were matters of great concern tothe jurists. The Romans pooled their resources for tradingpurposes, and of course they sometimes left one partner tomanage the business. Questions were bound to arise whether

8' Sale of Goods Act, ss. 16-20; Uniform Sales Act, ss. 17-22.83 Sale of Goods Act, ss. 21-6; Uniform Sales Act, ss. 23-40... In most Civil Law systems this has forced its way with difficulty;

ct. p. 110 note (38). supra.

TH E CONTRIBUTION OF ROMAN LAw 123and to what extent partners were responsible to their fellowpartners' creditors. The questions, which concern agency, notpartnership, were solved in very roundabout ways thatwould certainly not satisfy us and have been replaced inthe modern Civil Law by methods not unlike our own. Butthey had nothing to do with the contract of partnership,which was concerned only with the rights and duties of thepartners inter se.

Similarly, mandate covered only the relations betweenprincipal and agent. The agent's relations with the thirdparty might arise from sale or hire, or something else. Theproblems of pure agency which might arise between theprincipal and the third party were dealt with imperfectlyin the ways I have just mentioned in relation to partnership.

Of course .this isolation65 of the relation between theparties from its surrounding circumstances and problems isartificial. Partnership affairs would not get on at all if thepartners concentrated their attention on their relations interse. A mandate to an agent to make a contract with a thirdparty would make nonsense unless the principal hoped insome way or other to be brought into relations with thethird party. Even a contract of sale, complete as it mayappear to be in itself, is the product of isolation. It is notfully intelligible apart from title and conveyance.

But this isolation is not unintelligible in a law built upon a system of actions; for in such a system, the actionsmust be kept apart.66 Above all, it is only in recent times.. For the Roman tendency to isolate, ct. p. 88, supra ... "We must keep up the boundaries of actions, otherwise we shallintroduce the utmost confusion into the law"-per Lord Raymond in.teynolds \'. Clarke (1725). 2 Ld. Raym. 1399. quoted in Fifoot.

ENGLISH LAW AND ITS BACKGROUND, 154.


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124 A COMMON LAWYER LOOKS AT THE CIVIL LA wthat we have been able, by interpleader, third party notices,and the like, to clear up in one action all the problemsraised by a complex set of relations between several parties. 67The furthest the Romans got was to allow vouching towarranty where a buyer was evicted. Thus it was inevitablethat the actions should cover only the relations between theparties, and the contracts were regarded as co-terminouswith the actions.

TH E ACTIONS ON THE CONSENSUAL CONTRACTSThose actions had very remarkable characteristics, which

throw into relief the differences and the relations betweenthe consensual contracts and the stipulation. In a stipulation the promisee would usually demand a sum of moneyasa penalty for failure to perform the undertaking which wasthe real object of the stipulation, and in an action on thestipulation would simply claim the penalty as a money debt.I f the stipulation was directly expressed as a demand forthe actual performance, the judge would be directed by thepraetor to value the performance and award damagesaccordingly. The result was less automatic, but the taskwas still simple.

In the actions on the consensual contracts, on the otherhand, the judge, after being merely told in the most generalterms that the plaintiff had sold a particular thing to thedefendant, or bought it from him, and so on, in such a wayas to specify the form of action, the parties, and the subjectmatter of the action, was directed to order the defendant, ifunsuccessful, to pay the plaintiff whatever he found to be

"' C/. Millar, CIVIL PROCEDURE OF THE TRIAL COURT IN HISTORICALPERSPECTIVE, Ch. XII, "Third Party Participation".

TH E CONTRIBUTION OF ROMAN LA w 125due ex fide bona, that is to say, in accordance with therequirements of good faith;68 and this cast on the judge, orrather the jurists who advised him, the burden of decidingwhat the defendant ought in good faith to have done, inother words what kind of performance the contract calledfor. This meant that, in contrast to the stipulation, whereall the terms had to be expressed, the parties would bebound not only by the terms they had actually agreed to,but by all the terms that were naturally implied in theiragreement. The slightest acquaintance with the Digest willshow that it was these implied terms that were the staplesubject of the discussion.TH E RELATION BETWEEN THE CONSENSUAL CONTRACTS

AND THE STIPULATIONWe shall probably never know how the law came toenforce the consensual contracts apart from stipulation, nor

is the question relevant to a study of the modern Civil Law.But it is relevant to ask what was the effect of their accept-ance, and as a preliminary point we must note that theRoman jurists do not seem at all interested in the questionwhy those particular contracts should have been enforcedon a consensual basis, certainly much less interested than intheir implied terms. It seems clear that the point of viewof the mature Roman lawyer was that a distinction shouldbe made between certain typical contractual figures whichrecurred so frequently that they acquired a precise and

.. E.g., "Quod Aulus Agerius Numerio Negidio hominem quo de agiturvendidit, qua de re agitur, quidquid ob earn rem Numerium NegidiumAulo Agerio dare facere oportet ex fide bona, eius iudex NumeriumNegid ium Aulo Agerio condemna si non paret absolve." These actionswere not unlike the common counts of older English pleading.


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128 A COMMON LAWYER LOOKS AT THE CIVIL LAwsible out of the way cases. The more astute and experienced you are, the greater field your draftsmanship willenable you to cover. But if you try to cater for every-thing, you are apt either to overlay your general rules witha mass of inelegant and awkward exceptions or to misssomething really important. You may be so anxious tocatch the rare wrongdoer that you may make life impossibly complicated for the ordinary decent man. Accordinglyone should not be unduly surprised if one finds that somerather rare transactions fall outside the scope of the con-sensual contracts. The Romans may well have said "Suffi-cient unto the day is the evil thereof."

The second is that the Roman world was much simplerthan our own, and if we should find that highly sophisticated transactions of modern life cannot be completelyanalyzed in terms of the consensual c o n t r a c t ~ t h e y can beexplained much more completely than would at first sightappear-that is not the Romans' fault. They themselvesafterwards made actionable certain agreements, such as theinformal acknowledgment of a debt, which did not fallwithin the consensual contracts. The four consensual con-tracts did in fact cover most of the ground, certainly enoughto make recourse to the stipulation not at all burdensomeor awkward. TO

MANDATE THE KE Y TO THE PICTUREAll of this may seem theoretical or based on mere assump

tions. It is here that mandate, and in a lesser degree hire,come into the picture. The Roman contract of hire is hardly

0 The stipulation was in fact very much used. even in cases coveredby the consensual contracts. See also p. 134. note (80), infra.

TH E CONTRIBUTION OF ROMAN LAW 129a real unit, certainly not if you consider it from an economicor business point of view. We should never throw togetheran agricultural lease, a contract for the carriage of goods bysea, general average, a contract for the repair of a necklace,and a contract to serve for wages as an amanuensis;T1 nor,having once noted the common element in all these transactions with their almost infinitely variable economic purposes,and having made the same form of action available fortheir enforcement, did the Romans always deal with themon the same lines.

Although the business purposes for which mandate couldbe used seem even more varied, one has less difficulty indisengaging a uniform notion of mandate. But it seems sowide as not to afford the security which lawyers need andwhich they think they find in specific rather than generalconcepts. 72 Indeed Fritz Schulz, who elsewhere gives greatprominence to the ties of friendship in ancient Rome, whichenabled a man to call on others to do something for himwithout reward,73 says openly "one may doubt whether itwas a good idea to make mandate a contract at all."74 Icannot help thinking that mandate was something of a "fillin." Or it might be better to say that when one has singledout sale, hire, and partnership as normal elements in business life, one can cover the greater part of what is left overonly by having recourse to some very general idea such as

11 They are dealt with separately in all the modern Codes and treatises.n C/. pp. 155-156, infra.n PRINCIPLES OF ROMAN LAW, 236-7 ."CLASSICAL ROMAN LAW, 525.


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130 A COMMON LAWYER LOOKS AT THE CIVIL LAwmandate. 75 In other words, probably the Romans of about100 B.C. could, if they had wished, have restricted theactions on mandate to certain typical cases. That they didnot suggests to me that they wanted to cover the wholeground.

There is no magic in the number four, nor do I thinkthe Romans of that period were affected by any preferencefor it; but when classifying one obviously feels an attrac-tion for small numbers. As soon as a number of classesbecomes big, there is a sense that one is dealing with indi-vidual cases, with "one damned thing after another." So Ican imagine that four classes were just about what theRomans wanted, and perhaps they were more excited byhire and mandate, which had varied economic contents, thanby sale and partnership, which were unitary. But once theyhad become familiar with the four consensual contracts andhad become expert in handling them, they were not afraidof treating one aspect of gratuitous bailment or pledge interms of contract, or of admitting new informal pacts suchas the acknowledgment of a debt. More interesting is theuse of added pacts to vary the implied terms of all infor-mal contracts. The law governing them is complicated andlengthy, and shows the marks of a rather difficult birth. Itis enough for us that they gave to the consensual contractsthe flexibility of the stipulation, without its formalism orinsistence on the simultaneous presence of the parties.

t. As I have already indicated (p. 118, supra), mandate does not fitverv easily into the classification of these contracts as consensual; andthis points to the probability that the classification is much later thanthe admission of mandate as an actionable contract. Moreover, if theground was to be properly covered, any question of reward had to beleft in the background.

THE CONTRIBUTION OF ROMAN LAw 131What I have described gives the essense of the classical

law. In all probability it was always eked out by specialactions on informal agreements that did not clearly fallwithin the four corners of a known contractual figure.After the classical period, new developments took place.They are all part of what Fritz Schulz has called "the post-classical fight against the stipulation." 76 With one, thegradual replacement of the stipulation by written documents,usually alleging fictitiously that a stipulation has been made,we need not deal.77 It has had hardly any effect on themodern law. A second is particularly in place here.

THE INNOMINATE CONTRACTSBy Justinian's time the law admitted the enforceability of

what are now called "innominate contracts," i. e. any agree-ments whereby one party promised to give or do somethingin return for a promise to give or do by the other party.For some unknown reason these contracts were not allowedto absorb the whole of the law of contract, since they wereheld to become binding only when one of the parties hadcompleted performance. Until that time, either party had alocus poenitentiae, which, if utilized, prevented the agree-ment from materializing into a contract. These contractshave been called innominate because their validity did notdepend on their falling within any recognizable contractualfigure. Some indeed, such as exchange, did become inde-pendent contractual figures, of which we know a good deal.But the others are, because of their late development, some-what of a mystery. What were their terms? Not having

to op. cit., 524.ft ct. a very recent account by Barry Nicholas, 69 L. Q. R. 233.


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132 A COMMON LAWYER LOOKS AT THE CIVIL LA wrecognizable shapes, they could not be furnished with anapparatus of implied terms. They seem therefore eminently fitted to be given the form of a stipulation, now inwritten form, in which case, unless expressly bargained for,the locus poenitentiae, which must have been a nuisance,would have been excluded. It looks as though they weremeant to cover cases where there had been some slip, andone or both of the parties had thought a consensual contractwas being entered into but some essential requirement, suchas the money price in sale, was omitted. 78 But the notion ofthe innominate contract, outside the ordinary contractualfigures, has been important in the mediaeval and modernlaw, and we shall meet it again in the next lecture.

DONATIONThe other development is in some respects even odder.

For the republican and classical law, gift, or donatio, wasnot a contractual figure, though it was something fromwhich sale had to be kept distinct, by insisting on a real, ifnot an adequate price. I f a person wanted to make a gift,he could do so out and out by conveying the object of it,or he could bind himself to execute his promise by stipulation. There is, as all lawyers know, much to be said forinsisting on formalities where gifts are concerned. Yet Justinian made valid a bare informal promise of a gift, thoughabove 500 solidi, say 4000 dollars, it was valid only if registered. In the end no harm was done, for most modem

,. Perhaps there was good sense in the arrangement by which eitherparty had the option of rescission until performance by the other. Thereis a remote analogy in the choice between rectification and rescissionoffered in cases of mistake; Garrard v. Frankel (1862),30 Beav. 445.

TH E CONTRIBUTION OF ROMAN LA w 133systems have placed restrictions on gifts, usually subjectingthem to notarial authentication; and they have retained ordeveloped Roman rules allowing the revocation of gifts foringratitude or on certain other grounds, or their reductionin the interest of family heirs.

CONCLUDING REMARKS ON CONTRACTSThe distinction between nominate and" innominate con

tracts, expressed most characteristically as that between thefour consensual contracts and the contracts made by stipulation, seems to me to be the key to the Roman contractualsystem. I believe that the group of men who, somewhereabout the year 100 B.C., started the consensual contracts ontheir way as actionable agreements---:or rather the actionsby which they were enforced-were concerned by analysisto reduce by far the greater part of normal business activityto four simple processes and to work out their implications.Apart from the money loan, which was already providedfor, and guarantee and donation, which were better left tobe made by stipulation, I doubt whether they omitted any-thing deliberately, though they would not have been troubled to find that some stray agreements had escaped theirnet, and they were glad to have the stipulation in reservefor unusual agreements. I believe that the four simpleprocesses were viewed by them as abstractly as the stipulation, though they were one stage removed from an abstractagreement. Whatever may have been the case with saleand partnership, both hire and mandate are far too variedin content for any consideration of their economic or busi'less purpose to have swayed the law in favor of recognizingthem on grounds of public policy.


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134 A COMMON LAWYER LOOKS AT THE CIVIL LAwBut it may well be that later on the consensual contracts

were thought to enjoy a privileged position which could bejustified only by some view of public policy associated withtheir cause. 79 This at least, or something like it, seems to bethe modern view. The Roman consensual contracts havebeen taken over into modern law with remarkably littlealteration, but have often become blurred by being given areal effect as conveyances or otherwise made to apply be-yond the actual parties. Because they are familiar, theyhave been fully accepted and cause no difficulty. But theyand other contracts which have become familiar and therefore nominate in their turn are the real counters of theCivil Law of contract in a way that the particular contractsof the Common Law are not; and although German andSwiss lawyers protest that they have no difficulty in handlingseriously intended agreements outside their scope, Frenchand Italian lawyers confess that they are sometimes at aloss in dealing with innominate contracts and tend to de-mand special proof of their terms.80

" Some such misunderstanding, as I think it to be, may have contributedto make the classical law stiffer and less rational than it might havebeen. Schulz, op. cit., 525, says: "On the whole the republican lawyerswere on the right path. But after these proud beginnings the laterepublican and classical law is somewhat disappointi ng:' I do not knowif Professor Schulz would agree with my views entirely.

.. Professor Gino Goda, of Pavia and Alexandria (Egypt), has shownme cases where an unusual agreement has been construed as a donationwith a charge attached to it, and so as requiring notarial authentication.For the remnants of a similar attitude in Scots law, see Edmondston v.Edmondston, 1861, 23 D. 995, where proof by writ or oath was requiredof a promise by A to leave all his property to B if B would settle as adoctor in Shetland.

TH E CONTRIBUTION OF ROMAN LAw 135CONCLUSION

I have selected these particular features of Roman Lawfor discussion not because they are the only ones that haveremained characteristic of the modern Civil Law-there isan immense amount left to one side-but because theybelong to a world that the common lawyer enters onlywith pain and travail. Moreover, the dissonance betweenthe Civil and the Common Law has, if I may so call it, asort of symmetry. They are rich in concepts, analytical andabstract in different places; and just as the Civil Law ofcontract resembles the Common Law of real property in itsprofound analysis and consequent richness in concepts, sothe Common Law of contract in its comparative poverty ofintermediate concepts, resembles the Roman Law of property. Much might be written to explain the difference, andI believe much is due to historical accident and especiallyto the work which lay to the hands of lawyers when theywere of an analytical turn of mind. All I want to say hereand now is that it has passed into and dominates themodern law.

Appendix on BailmentThe Romans themselves came to recognize another side

of such contracts as are in a general way analogous to themoney loan in that they arise from an actual bailment andnot from a mere promise to put a thing at the disposal ofanother. These are the so-called bonae fidei real contracts,commodatum, depositum, and pignus. It is very remarkablethat these contracts were recognized as such only at a com-

civil. lawson, a common lawyer looks

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