The objective of Maine’s analysis was to portray the early ideas as they were
reflected in ancient legal texts and to point out the common nominators between
them and the thinking of his time. According to Maine, ancient Roman law saw
contracts as a combination of a pact between the parties, resulting from consensus,
and of an obligation, which was added to the pact. Obligation was considered to
be ‘the “bond” or “chain”, with which the law joins together persons or groups of
persons, in consequence of certain voluntary acts’.
8 Four types of contract were
recognised and could be enforced by law: the verbal contract, the literal contract,
the real contract and the consensual contract, which all emerged at different phases
of the Roman era.
The first and most common type of enforceable contract Maine distinguishes is
the verbal contract, which consisted of a question and an answer, which together
created the agency for annexing the obligation to the contractual instrument
itself. The verbal contract followed a specific technical form. The literal contract
is different from the verbal in that the obligation was formed by an entry of the
debt sum to the debit side of a ledger. The literal contract was related to the
domestic habits of household bookkeeping. It is unclear whether consent was a
required element for the obligation, as the meaning and context of the literal
contract changed during the later stages of the Roman Empire.
9
Unlike earlier contractual forms, the real contract signified the emergence of
ethical conceptions, Maine claims. In real contracts, the obligation followed directly
from the performance of a party, which imposed a legal duty on the other based on
ethics. However, the last form of contract, the consensual contract, transformed
Roman contract law by incorporating the obligation directly to the consensus of the
parties without the need for any additional acts. However, the scope of application of
consensual contracts was limited to commission and agency (mandatum), partnerships (societas), sale (emptio venditio) and letting and hiring (locatio conductio).
Maine suggests that these types of transaction are the most common legal acts of
any trade-oriented community, which is also the reason for forgoing technical
formalities as obstacles to trade. The historical significance assigned to consensual
contracts is partly due to the possibilities of further doctrinal classifications it
enabled, such as natural and civil obligations and quasi-contracts. Also, the use of
the Latin language played a central part in disseminating the innovations of Roman
contract law to the Western parts of the Empire and making them accessible to
medieval scholars.
10
The work of Maine located the birth of contract law, and the role of consent,
in Roman law. Although consent has played a part in contracts under Roman
law, the emphasis granted to the concept is the product of latter social changes.
This conceptualisation of legal evolution is often considered to be a transition
from status-bound rights and duties to social relations regulated by contracts.
11
Since Roman law, the doctrine of contractual law has undergone significant
and diverse changes. However, the increasing importance of commercial
exchange formed the societal background for this development of contractual
law in the eighteenth and nineteenth centuries. This increase of commerce and
the need to develop a contractual theory for its needs also explain why Maine’s
Consent and private autonomy 145
reflected in ancient legal texts and to point out the common nominators between
them and the thinking of his time. According to Maine, ancient Roman law saw
contracts as a combination of a pact between the parties, resulting from consensus,
and of an obligation, which was added to the pact. Obligation was considered to
be ‘the “bond” or “chain”, with which the law joins together persons or groups of
persons, in consequence of certain voluntary acts’.
8 Four types of contract were
recognised and could be enforced by law: the verbal contract, the literal contract,
the real contract and the consensual contract, which all emerged at different phases
of the Roman era.
The first and most common type of enforceable contract Maine distinguishes is
the verbal contract, which consisted of a question and an answer, which together
created the agency for annexing the obligation to the contractual instrument
itself. The verbal contract followed a specific technical form. The literal contract
is different from the verbal in that the obligation was formed by an entry of the
debt sum to the debit side of a ledger. The literal contract was related to the
domestic habits of household bookkeeping. It is unclear whether consent was a
required element for the obligation, as the meaning and context of the literal
contract changed during the later stages of the Roman Empire.
9
Unlike earlier contractual forms, the real contract signified the emergence of
ethical conceptions, Maine claims. In real contracts, the obligation followed directly
from the performance of a party, which imposed a legal duty on the other based on
ethics. However, the last form of contract, the consensual contract, transformed
Roman contract law by incorporating the obligation directly to the consensus of the
parties without the need for any additional acts. However, the scope of application of
consensual contracts was limited to commission and agency (mandatum), partnerships (societas), sale (emptio venditio) and letting and hiring (locatio conductio).
Maine suggests that these types of transaction are the most common legal acts of
any trade-oriented community, which is also the reason for forgoing technical
formalities as obstacles to trade. The historical significance assigned to consensual
contracts is partly due to the possibilities of further doctrinal classifications it
enabled, such as natural and civil obligations and quasi-contracts. Also, the use of
the Latin language played a central part in disseminating the innovations of Roman
contract law to the Western parts of the Empire and making them accessible to
medieval scholars.
10
The work of Maine located the birth of contract law, and the role of consent,
in Roman law. Although consent has played a part in contracts under Roman
law, the emphasis granted to the concept is the product of latter social changes.
This conceptualisation of legal evolution is often considered to be a transition
from status-bound rights and duties to social relations regulated by contracts.
11
Since Roman law, the doctrine of contractual law has undergone significant
and diverse changes. However, the increasing importance of commercial
exchange formed the societal background for this development of contractual
law in the eighteenth and nineteenth centuries. This increase of commerce and
the need to develop a contractual theory for its needs also explain why Maine’s
Consent and private autonomy 145