HARVARD LAW REVIEW. VOL. VI. MARCH 15, 1893. No. 8. CONTRACTS IN EARLY ENGLISH LAW. THE HE law of contract holds anything but a conspicuous place among the institutions of English law before the Norman Conquest. In fact, it is rudimentary. Certain provisions which may seem at first sight to show considerable development in this direction turn out, on closer scrutiny, to have a wholly different bearing. There are many ordinances requiring men who traffic in cattle to make their purchases openly and before good witnesses. But they really have nothing to do with enforcing the contract of sale as between the parties. Their purpose is to protect an honest buyer against possible claims by some third person alleging that the beasts were stolen from him. If the Anglo-Saxon "team" was an ancestor of the Post-Norman law of warranty in one line, and of rules of proof, ultimately to be hardened into rules of the law of contract, in another, the results were undersigned and indirect. Anglo-Saxon society barely knew what credit was, and had not occasion for much regulation of contracts. We find the same state of things throughout northern and western Europe. Ideas assumed as fundamental by this branch of law in modern times, and so familiar to modern lawyers and men of business as apparently to need no explanation, had perished in the general breaking up of the Roman system, and had to be painfully reconstructed in the Middle Ages. Further, it is not free from doubt (though we have no need to dwell upon it here) how far the Romans themselves had attained to truly general conceptions. In any case, our Germanic ancestors, not only of the Carolingian period, but down to a much later time, had no general notion whatever of promise or agreement as a source of civil obligation. Early Germanic law recognized, if we speak in Roman terms, only Formal and Real Contracts. It had not gone so far as to admit a Consensual Contract in any case. Sale, for example, was a Real, not a Consensual transaction. All recent inquirers, I believe, concur in accepting this much as having been conclusively established by Sohm. The process of arriving at a law of simple contracts was different in England and on the Continent, although some curious partial coincidences may be found. Both here and on the mainland the secular courts were put on their mettle, so to speak, by the competition of the spiritual power. The canonists, possibly taking up some popular survival of the Roman tradition (a very ancient one), expressed in the cult of Fides and the consecration of the right hand in the office of plighting troth,1 proclaimed that "fidei laesio," "fidem fallere," was a mortal sin, a sin to be visited, on due proof, with censure and excommunication. Between breach of oath and breach of plighted word it was only a difference of degree, — "inter simplicem loquelam et iuramentum non facit Deus differentiam." In Italy, where the tradition of classical Roman law never became quite extinct, the development of this doctrine was to some extent checked by the difficulty of stating it in a Roman form of plausible appearance even for the use of ecclesiastical judges; 2 while, on the other side, the problem for the civilian lawyer was to find means of expanding or evading the classical Roman rules, and open the door of the secular tribunal to formless agreements by practically abolishing the Roman conception of "nudum pactum." In England the Court Christian was early in occupation of the ground, and bold in magnifying its jurisdiction. The king's judges were rather slow to discover how great and profitable a field their rival was occupying. The problem was not faced until the common-law system of pleading was mature; and 20, I. 1 This is not the place for a digression on Roman legal antiquities. Fides is the special name of iustitia as applied creditis in rebus, Cic. Orat. Part. c. 22, § 78, cf. D. 12. I. de r. c. I. [Populus Romanus] omnium maxime et praecipue Fidem coluit, Gell. See Muirhead, Private Law of Rome, 149, 163; Dion. H. 2. 75; Livy, 1. 21, § 4; and (as to the right hand) Plin. H. N. xi. 45, 103, Servius on Aen. 3. 607; E. Pacchioni, Actio ex sponsu (repr. from Archivio Giuridico), Bologna, 1888, on the distinct history of the Stipulation. 2 Seuffert, Zur Gesch. der obl. Verträge, Nördlingen, 1881 (q. v. for the whole his tory), p. 66. the thing sought was then to invent a new cause and form of action within limits that were no longer wide. In Italy we find some jurists holding that an action de dolo will lie for damage caused by breach of an informal pact.1 This offers a striking parallel to the influence of the action of deceit in forming the English doctrine of assumpsit, which is now put beyond question by the researches of Judge Hare and Mr. Ames. But the method which found most favor.among the Italians was to hold that an additional express promise ("pactum geminatum" or "duplex") was a sufficient "clothing" of the natural obligation arising from a " nudum pactum" to make it actionable. The formerly current opinion in the common law that an express promise, founded on an existing moral duty, is a sufficient cause of action in assumpsit, is not unlike this. Gradually the Northern nations followed suit; the French lawyers of the sixteenth century, going back as humanists to the original Roman authorities, held out latest of all. From the seventeenth century onwards, German writers boldly appealed to the law of nature. The modern philosophic lawyers of Germany do not seem wholly satisfied with the results. I am not aware of any evidence that our common lawyers knew or cared what was happening among Continental civilians, or that English canonists, who had already taken their own line, troubled themselves about it. For the For the purposes of our own history we shall be safe, I think, in confining our attention to English authorities. There is really no sure standing-ground earlier than Glanvill, and we may begin with Glanvill accordingly. The title of his tenth book is "De debitis laicorum quae debentur ex diversis contractibus, videlicet ex venditione, emptione, donatione, mutuo, commodato, locato, conducto, et de plegiis et vadiis sive mobilibus sive immobilibus, et de cartis debita continentibus." It will be observed that this includes the law of pledge and mortgage, which we now regard as belonging to the law of property rather than of contract. Why Glanvill used the word "laicorum," at first sight pointless to modern eyes, will soon enough appear. The promise of the title is but scantily fulfilled. Nothing is said of grants or gifts, and very little of hiring or the divers forms of loan. In fact, the use of the terms mutuum, commodatum, locatum, conductum, is a mere 1 Seuffert, op. cit. 77, 80. 2 Note to Wennall v. Adney, 3 Bos. & P. at p. 249; 6 R. R. at p. 782. ་ 1 flourish to show the clerical reader that the king's lawyers could speak his own language with him if they chose. What we really gather from Glanvill's exposition is, positively, a classification of modes of proof; negatively, the assurance that the king's court did not concern itself with ordinary matters of contract. 'Privatas conventiones non solet curia domini regis tueri." It admitted, in general, only two kinds of proof, the defendant's deed, and trial by battle.2 There is no sign as yet, of any desire to extend the jurisdiction. Four ways of creating an obligation seem to be recognized; not meaning necessarily, nor even usually, an obligation which the king's court will enforce. These are "plegiorum datio," "vadii positio," " fidei interpositio," " cartae expositio." It is needless to say much here about the validity of sealed writing, which in its earlier history, like so much else in archaic jurisprudence, appears rather as matter of evidence than as a substantive part of law. The defendant's deed is a solemn admission; and, according to the general habit of archaic law, when it has once established itself as a mode of proof, it is conclusive, or all but conclusive. Thenceforward it is only a short step to holding as matter of law that a deed has an operative force of its own which intentions, expressed never so plainly, in other ways have not. With regard to sale and pledge we get a certain amount of substantive information. The contract of sale, as presented by Glanvill, is thoroughly Germanic. Scraps of Roman phraseology are brought in, only to be followed by qualification amounting to contradiction. To make a binding sale there must be either delivery of the thing, payment of the whole or part of the price, or giving of earnest. The specially appointed witnesses of the Anglo-Saxon laws provide, of course, not an alternative form or evidence of the contract, but a collateral precaution. In substance, these are the very conditions 1 x. 18, cf. c. 8: "Curia domini regis huiusmodi privatas conventiones de rebus dandis vel accipiendis in vadium, vel alias huiusmodi, extra curiam sive etiam in aliis curiis quam in curia domini regis factas tueri non solet nec warrantizare." 2 x. 17. 3 Cf. Salmond, Essays in Jurisprudence and Legal History (London, 1891), 14, 44 seqq. 4 X. 14. "Perficitur autem emptio et venditio cum effectu ex quo de pretio inter contrahentes convenit, ita tamen quod secuta fuerit rei emptae et venditae traditio, vel quod pretium fuerit solutum totum sive pars, vel saltem quod arrhae inde fuerint datae et receptae." Sir E. Fry's remark, Howe v. Smith (1884), 27 Ch. Div. 89, 102, on the supposed Roman derivation of the old law as to earnest money, as stated substantially to the same effect by Bracton, cannot be supported in face of the manifestly non-Roman character of the other rules. which the Statute of Frauds allows as alternatives to a note or memorandum in writing in the case of a sale of goods within the seventeenth section. Observe that the giving of earnest is treated as quite a different thing from part payment. Earnest, as the modern German writers have shown, is not a partial or symbolic payment of the price, but a distinct payment for the seller's forbearance to sell and deliver the thing to any one else. In the Statute of Frauds, five centuries later, "something in earnest to bind the bargain" and "part payment" are distinguished, indeed, but thrown into the same clause as if the distinction had ceased to be strongly felt. In Glanvill's time earnest was still, as it was by early Germanic law everywhere, less binding than delivery or part payment, for if the buyer did not choose to complete, he only lost the earnest he had given. The seller had no right to withdraw from the bargain, but Glanvill leaves it uncertain what penalty or compensation he was liable to pay. In the thirteenth century 1 Bracton and Fleta state the rule, probably a very old one, that the defaulting buyer must repay double the earnest; in Fleta the law merchant is said to be much more stringent, in fact prohibitory, the forfeit being five shillings for every farthing of earnest. There was no machinery, it will be remembered, for assessing damages; and this also explains why the only remedy on what we now call an express warranty of soundness 2 was to return the object (assumed throughout to be a horse or head of cattle), and sue in debt for the price if it had been paid. In case a third party claimed the object as stolen from him, the seller must be prepared either to warrant the buyer's right, or, if he refuses to do this, to be himself impleaded by the buyer, with the possible end of a trial by battle. There was certainly no question of property passing before actual delivery. Such a question would indeed not have been intelligible at a time when property was in no way distinguished from the right to possession. We are told that the thing was at the risk of the party in possession. Bracton and Fleta repeat this, and seem not to allow that the contract was complete without delivery, even when the whole price was paid.5 1 Bracton, fo. 61 b, 62 a; Fleta, 1. 2, c. 58. 2 "Si venditor ipse rem suam vendiderit emptori tanquam sanam et sine mahemio." 8 Glanv. x. 15. 4 "Periculum autem rei venditae et emptae illum generaliter respicit qui eam tenet, nisi aliter convenerit." 5 In Madox, Form. Ang. 167, we have a sale of 40%. worth of growing crops with receipt in the body of the deed for "unum denarium ratione Ernesti super vendicionem |