integrated whole was a product of Islam. Given the evidence outlined below, this conclusioncan no longer be avoided as a plausible theory.I. Contract in the Action of DebtTo understand the nature of contract law as practiced in the English royal courts
in thetwelfth century, we start with the first classical textbook on English law, commonly knownby the name of its purported author, Glanvill.
After studying Glanvill directly, we willexamine interpretations of his text from a Roman perspective, [*1641] followed by a newinterpretation from an Islamic perspective.A. Glanvill's Definition of ContractThe earliest writ regularly issued by the English royal courts to recover contract debts wasthe writ of debt in the twelfth century.
It permitted the buyer and the seller each toenforce the obligation of the other party in a sale of goods.
Contracts for the sale of goods were not unusual at this time in non-royal courts, but the writ of debt in the royalcourts introduced a new concept of obligation by which the contracting parties werebound.
The old concept of obligation, as seen in Anglo-Saxon contracts, was that of apromise marked by some formality such as a handshake.
After making the promise, theseller had an obligation, undergirded by the morality of keeping a promise, to deliver whatstill remained his own property to the buyer.
The new concept of obligation, embodied inthe action of debt, was a grant effectuated by the agreement of the parties.
After makingthe agreement, the seller had an obligation, based on the transfer of ownership that hadalready taken place upon agreement, to deliver the buyer's property to the buyer.
To understand the nature of this new type of contractual obligation protected by the actionin debt, we turn to its earliest definition provided by Glanvill
in the late 1180s:The cause of a debt may also be purchase or sale, as when anyone sells some thing of histo another; for then the price [*1642] is owed to the seller and the thing purchased isowed to the buyer. A purchase and sale is effectively complete when the contracting partieshave agreed on the price, provided that this is followed by delivery of the thing purchasedand sold, or by payment of the whole or part of the price, or at least by the giving andreceipt of earnest.
Most of this statement is clear. A complete sale was effectuated by contractual agreementon the price. In other words, the contract of purchase and sale, which was a binding set of mutual obligations, was completed by agreement. This contract, in turn, was the cause of adebt whereby the thing purchased was owed to the buyer by the seller and the price wasowed to the seller by the buyer. There are two parts of Glanvill's statement, however, thatare not clear. What does it mean to say that something was "owed" in an action in debt?And what does it mean to say "provided that this is followed by delivery"?To say that something was "owed" in the action of debt was to say that something was"owned." In the writ of debt the plaintiff complained that the defendant "ei iniustedeforciat."
The word "deforciat," which translates directly as "deforces," was used in thesense that the debtor was withholding the creditor's own property.
Therefore, the debt"owed" by a contracting party was the obligation to pay the other party what was already