This paper examines the historical development of contracts, in particular, the shift from Roman contracts towards the modern contracts in Europe in 18th and 19th centuries. The paper was researched by reading peer-reviewed journal articles and texts, as well as grey literature, about the topic.
Anciently, an obligation referred to the relationship between right and duty, stemming from Roman legal practice (Zimmermann 1). From that ancient understanding, today English law recognizes only that duty or obligation which must be honoured. That duty or obligation is sealed in a contract, which is “…based on the consent of the parties thereto” (Zimmermann 546), the scope of the consent, and compliance. These principles originated in the following manner. The Roman contract verbis, or oral stipulation, became adapted to “the practice of time” (Zimmermann 546). In Justinian law, specifically, the Corpus Juris Civilis, this practice of verbal stipulation was emphasized together with the completion of the contract. In medieval times, there was a “contract litteris” (Zimmermann 547) which was a contract recorded in what was considered a “…(notarial) document” (Zimmermann 547), or instrument. This instrument represented the amalgamation of theory and practice, with presumptions noted by specific language, e.g. “promittere…. [vs.]… “convenire” (Zimmermann 547). This then highlighted the challenge of the private nature, or “scriptura privatta”(Zimmermann 547) of the contract, which was countered by the formality of having legal contracts drafted by professionals, i.e., the medieval lawyer.
Zimmermann, referencing Zweigert’s reference to cause as an “indicium of seriousness” (Zimmermann 549), notes the principle of contractual obligation was based on Grotius’ understanding of the principle that “an agreement, in order to be enforceable, must be shown to be based on a (lawful) cause” (Zimmermann 549). This principle exists in many modern European legal systems, e.g., French civil law, where a contract could only be considered valid if cause existed. It can, therefore, be said that using the Roman law as a foundation, medieval lawyers created a formalized system of noting obligation, and this was codified in modern civil laws, each evolution adapted to the requirements of its age. This evolution is supported by the refinement of legal jurisprudence, whereby clarification that “…bare pacts were not actionable…without a causa … the pactum must have been made … (deliberately)” (Zimmermann 553) strengthened the development of contract law. So much so that by the 17th to 18th centuries, the requirement to establish causa was intrinsic to law practice, that is, that there must have been serious intent of the parities when making the contract. In Germany, law practice moved towards establishing procedure and evidence. In both France and Italy, the causa requirement continued (Zimmermann 553). In England, causa became firmly established in English common law and evolved into the doctrine of consideration. Despite critics of the use of causa in English common law, Zimmerman quotes Simpson who states simply the English view, “a promise which lacks any adequate motive cannot have been serious, and therefore out not to be taken seriously” (Zimmermann 554-555). Consensus is a further aspect of contract law. The parties involved conclude a contract based on consensus. In German law, a contract is binding once agreed upon. In English law, however, the contract is not binding unless the offeree accepts it, and the contract can be, at any time, withdrawn (Zimmermann 560).
In each instance, cultural and social influences determined how the law of contract is interpreted. Zimmermann details how Roman law contributed to modern European contract law, specifically noting the law was developed by natural lawyers, with the conceptual apparatus developed over the last few centuries (Zimmermann 561). For example, Domat and Pothier of France have refined French legal interpretation of contract law, and Grotius, Pufendorf, and Wolf have done so for other European countries. This common origin of contract law has leant uniformity to aspects of contract law and has implications for joint international contract development.
Zimmermann, R. The Law of Obligations: Foman Foundations of the Civic Traditions. Oxford: Clarendon Press, 1996.