The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface to the Tenth Edition.
• Preface to the Fifth Edition.
• Preface to the Third Edition.
• Preface to the First Edition.
• Introduction.
• Ancient Law.
• Chapter I.: Ancient Codes.
• Chapter II.: Legal Fictions.
• Chapter III.: Law of Nature and Equity.
• Chapter IV.: The Modern History of the Law of Nature.
• Chapter V.: Primitive Society and Ancient Law.
• Chapter VI.: The Early History of Testamentary Succession.
• Chapter VII.: Ancient and Modern Ideas Respecting Wills and Successions.
• Chapter VIII.: The Early History of Property.
• Chapter IX.: The Early History of Contract.
• Chapter X.: The Early History of Delict and Crime.
• Appendix Notes
• Chapter I. Page 1.
• Note A.: Antiquity of Roman Law.
• Note B.: Customary Law In Homer.
• Note C.: Early Forms of Law: “written” and “unwritten” Law: Early Codes.
• Chapter II. Page 20.
• Note D.: English Case-law and Fiction.
• Chapter III. Page 42.
• Note E.: the Law of Nature and “ius Gentium.”
• Note F.: Equity.
• Chapter IV. Page 70.
• Note G.: Medieval and Modern Treatment of the Law of Nature: Bracton: French Publicists.
• Note H.: the Origins of the Modern Law of Nations.
• Chapter V. Page 109.
• Note I.: Montesquieu, Bentham, and Historical Method.
• Note K.: the Patriarchal Theory.
• Note L.: Status and Contract.
• Chapter VI. Page 166.
• Note M.: Testamentary Succession.
• Chapter VII. Page 209.
• Note N.: Primogeniture.
• Chapter VIII. Page 237.
• Note O.: Capture, Occupation, Possession.
• Note P.: the Indian Village Community.
• Note Q.: Res Mancipi; Alienation In Early Law.
• Chapter IX. Page 295.
• Note R.: Contract In Early Law.
• Chapter X. Page 355.
• Note S.: Archaic Procedure.

Chapter IX. Page 295.

NOTE R.

CONTRACT IN EARLY LAW.

Remembering that Maine did not profess to write a treatise on Roman law, we shall not follow this brilliant and suggestive chapter with a critical eye for details. But we must note that Savigny’s explanation of the Stipulation as an “imperfect conveyance”—a truncated form of the Nexum (about which, by the way, little seems to be really known)—is not accepted by any recent author. The origin is now sought in an earlier religious obligation, probably by oath; opinions differ, as might be expected, as to the conjectural details (Muirhead, 22-7; Girard, 481, sqq.; Pacchioni, “Actio ex sponsu,” Bologna, 1888; Zocco-Rosa in Annuario dello Istituto di storia di diritto Romano, vol. 8, Catania, 1902). To such an origin the fact that the words “spondes? spondeo” could be used only by Roman citizens appears to point, though Savigny strangely failed to see this; and in medieval English law we actually find the religious sanction of the spiritual courts interposed, in the name of correcting the sinful breach of plighted faith (fidei loesio), to enforce promises which were still mere words for temporal courts, bound as they were to the archaic categories of forms of action. English example also shows how improbable it is that contract should be derived from an imperfect conveyance. In medieval English law a debt is constituted not by the debtor’s promise to repay, but by a supposed grant of the sum to the creditor, and the creditor’s action alleges no promise, but is in exactly the same form as an action to recover land, and is expressly called an action of property. Here we have conveyance enough. But the action of debt was quite incompetent to become the starting-point of any true law of contract, and when a way was found to sue on informal promises outside its limits, that way was altogether different. All this is in no degree prejudicial to the substance of Maine’s argument, which is to show that the law of contract, or, to be exact, any comprehensive doctrine of contract, appears everywhere only at an advanced stage of legal development. This is undoubtedly sound. Even the classical Roman law in its final form never attained a really general theory of contracts. Ultimately the want was supplied, but it would hardly be too much to say of the canonists on the Continent, certainly not too much to say of the common lawyers in England, that they took the kingdom of heaven by violence (cp. my “Oxford Lectures,” 1890, pp. 59-62; details and references for the English history in Pollock on Contract, 7th ed. 136, 170; 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).

Maine censures unnamed English critics (p. 322) for identifying the quasi-contracts of the Civil Law (the term is, of course, not classical) with the implied contracts of the Common Law. But the truth is that this latter expression is, or very lately was, ambiguous. Real agreements manifested by acts and conduct, and not by words, were constantly spoken of as “implied” contracts in English books, as Maine says, at the time when he wrote and long afterwards. Thus the Indian Contract Act of 1872 declares that a promise made otherwise than in words is said to be implied. Here a real agreement is inferred as a fact. But also many “relations resembling those created by contract” (to use again the language of the Indian Act) arise from facts which in Roman law would produce an obligation quasi ex contractu. Such facts, under the Common Law, may produce an obligation ascribed in the old system of pleading to a fictitious promise, which promise was said to be “implied” by the law. There are therefore so-called implied contracts in our law which may quite properly be compared with the quasi-contracts of the Roman law; they cover, indeed, much of the same ground. Of late years the term Quasi-contract has been fully naturalised in the American law schools, and by this time it is fairly well known in England. “Constructive contract” would have been correct and in harmony with the general usage of the Common Law, but no one seems ever to have used it.

One result, and a somewhat important one of observing how late and slow of growth any general doctrine of contract has been in any system of civilised law is to strengthen the conviction that a huge anachronism is involved in those political theories which seek to make contract the foundation of all positive law and even of government itself. It should be noted that the doctrine of the Social Contract is much earlier than appears in Maine’s statement, and that the theory of the divine right of kings, to which Maine alludes very briefly, was in its origin directed not against popular liberty but against papal and ecclesiastical claims to supremacy in temporal as well as spiritual affairs, as Mr. J. Neville Figgis has shown at large in his learned and acute monograph (“The Theory of the Divine Right of Kings,” Cambridge, 1896).

We have said that the classical Roman system of contracts was not theoretically complete; but this did not prevent the discovery that rights could be freely and largely modified by contract (for a discovery this was to the men of the Middle Ages, when the revived study of Roman law made the fact prominent) from exercising a fascination which is not at all exaggerated in Maine’s remarks at the end of this chapter. For a time there was a tendency to assume that estates and interests in land could be modified without limit at the will of parties, and this was not effectually checked in England until the latter part of the thirteenth century.