11 - Chapter 2

CHAPTER – II
EVOLUTION OF CONCEPT OF CONSIDERATION
Prelude
Prehistory is based on researches and findings; information and theories of this time are
always subject to new knowledge acquired with times; as one can never state prehistory
comprehensively with complete exactness. So, it can be said that Prehistory is that period in
antiquity for which there are no written records available for humans to know the past and all of
which are gathered from persistent archaeological ventures around the globe.
According to some academicians, thinkers, jurists and in view of the Encylopædia

Britannica, by Russell Howard, the process of human evolution had first evolved in Africa about
200,0001 years ago. Danish Scholar, Christian J. Thomsen gave the progression of human pre-
history (technological) by the “Three-Age System”2 of archaeology3, which divides the entire
pre-history period into three ages viz. Stone Age4 (divided into Paleolithic Age5, Mesolithic Age6
and Neolithic Age7), Bronze Age8 and Iron Age9.
1
. Russell Howard Tuttle, Encyclopædia Britannica, Human evolution, available at:
http://www.britannica.com/science/human-evolution (Last Updated October 16, 2015)., (crossed checked
on 05.01.17 by the supervisor).
2
Danish Scholar Christian J. Thomsen, came up with a framework for the study of human past, known as the
“Three Age System”. The basis of this framework is technological: it revolves around the notion of three
successive periods or ages: Stone Age, Bronze Age, and Iron Age, each age being technologically more
complex than the one before it. Cristian Violatti, Ancient History Encyclopedia, Stone Age, available at:
http://www.ancient.eu/Stone_Age/ (published on July 18, 2014)., (crossed checked on 05.01.17 by the
supervisor).
3
For details see Glyn Edmund Daniel, Encyclopædia Britannica, Archaeology, available at:
http://www.britannica.com/science/archaeology (Last Updated August 31, 2015)., (crossed checked on
05.01.17 by the supervisor).
4
For details see Cristian Violatti, Ancient History Encyclopedia, Stone Age, Definition, available at:
supervisor).
5
Ibid.
6
During the Mesolithic period, important large-scale changes took place on our planet. As the climate was
getting warmer and the ice sheets were melting, some areas in the northern latitudes rose as they were being
freed from the weight of the ice. At the same time, the sea levels rose, drowning low-lying areas, resulting
in major changes in the land worldwide: the Japanese islands were separated from the Asian mainland,
Tasmania from Australia, the British Isles from continental Europe, East Asia and North America became
divided by the flooding of the Bering Strait, and Sumatra separated from Malaysia with the correspondent
formation of the Strait of Malacca. Around 5,000 BCE, the shape of the continents and islands was very
much those of the present day. For details see Cristian Violatti, Ancient History Encyclopedia, Stone Age,
40
By the time of the Neolithic period, history has witnessed the gradual growth of some of
the greatest civilizations of the world e.g. Mesopotamian Civilization and Egyptian Civilization
etc.; Mesopotamian Civilization is one of the earliest civilizations of the world. It is believed that
Neolithic Mesopotamian economy was agricultural and barter based. Gradually, the body of law
of merchants grew and drew rules of laws governing commercial transactions. Ur-Nammu Code
of the Mesopotamian Civilization is believed to be earliest law code of the world. Though Code
of Urukagina is earlier than the code of Ur Nammu Code, but due to non-availability of its actual
text Ur Nammu code is taken to be the oldest. There were numerous contracts viz. contract of
sale and purchases, co-partnership, loans and mortgages etc. Despite having reached its pinnacle
in the commercial world; the concept of consideration as in English Common law was alien to
them. We do not find any reference of the concept of consideration in the commercial world
during that time.
In view of the references (supra discussed) it is worthwhile to mention here that while
researching on evolution of consideration, some concrete references are required which supports
and prove the genesis or origin of consideration as an essential ingredient for contracts.
Researcher has gone through so many references (infra discussed) and it is categorically
perceived that one has to make comparative view of different civilizations for the purpose of
research, which is globally accepted in every legal system. Ihering10 in his book‟s Vorgeschichte
der Indoeuropaer so stated that “If we would search out the origins of Roman law, we must
study Babylon11”12; in the same manner it may be said that to understand the evolution 13 of the
Definition, available at: http://www.ancient.eu/Stone_Age/ (published on July 18, 2014)., (crossed checked
7
For details see Cristian Violatti, Ancient History Encyclopedia, Stone Age, Definition, available at:
supervisor).
8
For details see The Editors of Encyclopædia Britannica, Encyclopædia Britannica, Bronze Age, available
at: http://www.britannica.com/event/Bronze-Age (Last Updated May 05, 2015)., (crossed checked on
9
For details see The Editors of Encyclopædia Britannica, Encyclopædia Britannica, Iron Age, available at:
https://www.britannica.com/event/Iron-Age (Last Updated 05 May 11, 2015)., (crossed checked on
10
. Rudolf von Jhering, Jhering also spelled Ihering, 1818-1892, German legal scholar. The Editors of
Encyclopædia Britannica, Encyclopædia Britannica, Rudolf von Jhering, available at:
http://www.britannica.com/biography/Rudolf-von-Jhering(Last updated October 24, 2003)., (crossed
checked on 05.01.17 by the supervisor).
11
. Babylon was one of the most famous cities from ancient Mesopotamia whose ruins lie in modern-day Iraq
59 miles (94 kilometers) southwest of Badhdad. For details see Joshua J. Mark, Ancient History
41
concept14 of consideration for contracts; one has to date back his research to its evolution in
Rome as well as in Britain and India. In this chapter an endeavour has been made by the
researcher to explore, the references of Roman and Britain for the evolution of consideration for
the purpose of formation of agreements/contracts. The researcher is therefore restricting her
research from the period of Roman civilization, the point when Romans inhabited Britain and to
what extent it had led to the Romanization of the English law or whether the English law had
proceeded on a different path, totally distinct from that of Romans.
2.1 ROMAN LAW
Before we proceed to know the Roman 15 laws, a brief insight of the ancient Roman
society is indispensable. It is believed that the ancient Roman society was a “status based
Encyclopedia, Babylon, Definition, available at: http://www.ancient.eu/babylon/ (published on April 28,

2011)., (crossed checked on 05.01.17 by the supervisor).
12
Cited in Charles. P. Sherman, Roman law in the Modern World 18 (The Boston Book Company, Boston,
1917), available at: https://ia600209.us.archive.org/35/items/cu31924021212877/cu31924021212877.pdf
(accessed on October 16, 2015)., (crossed checked on 05.01.17 by the supervisor).
13
Evolution – Every useful art has its technique which is practiced by those who are skilled in it, and which is
broadened in its usefulness thereto from precedent to precedent. This is the process of “evolution” – a
phenomenon in which the expectable follows the expectable. Less Car Load Lots Co. v. Pennsylvania R.
Co., D.C.N.Y., 10 F. Supp. 642, 648. Henry Campbell Black, Black‟s Law Dictionary, 659 (West
Publishing Co., St. Paul, Minn., rev. 4th edn., 1968), available at:
http://heimatundrecht.de/sites/default/files/dokumente/Black'sLaw4th.pdf (accessed on March 31, 2016).
14
Concept – a general notion or idea; conception; an idea of something formed by mentally combining all its
characteristics or particulars; a construct; a directly conceived or intuited object of thought.
Dictornary.com, Concept, available at: http://www.dictionary.com/browse/concept?s=t, (accessed on
March 20, 2016); Concept – an idea of what something is or how it works, Merriam-Webster, Concept,
available at: http://www.merriam-webster.com/dictionary/concept (accessed on March 20, 2016).
15
The Ancient Roman society (753 BC to 476 AD) A Short Chronology of Roman History (753 B.C. – 476
A.D.), available at:http://www.thelatinlibrary.com/imperialism/notes/romanchron.html (last visited on
January 05, 2016)., may be divided into four eras – The Regal Rome (753 BC to 509 BC) E. Badian,
Edward Togo Salmon, et.al., Encyclopædia Britannica, Ancient Rome, available at:
http://www.britannica.com/place/ancient-Rome (Last Updated August 24, 2015); (last visited on January
05, 2016).The Republican Rome (509 BC to 27 BC),The Editors of Encyclopædia Britannica,
Encyclopædia Britannica, Roman Republic, Ancient State [509 BC to 27 BC], available at:
http://www.britannica.com/place/Roman-Republic (Last Updated December 11, 2015); (last visited on
January 05, 2016). The Roman Empire (27 BC to 476 AD), The Editors of Encyclopædia Britannica,
Encyclopædia Britannica, Roman Empire, Ancient State [27 BC-476 AD], available at:
http://www.britannica.com/place/Roman-Empire(Last Updated October 24, 2016); (last visited on January
05, 2016); Division of Roman Empire in 285 AD into The Western Roman Empire also called the Holy
Roman Empire and The Eastern Roman Empire also called as the Byzantine Empire. Joshua J. Mark,
Ancient History Encyclopedia, Roman Empire, Definition, available at:
http://www.ancient.eu/Roman_Empire/ (Last Modified April 28, 2011); (last visited on January 05, 2016).
The Eastern Roman Empire/ The Byzantine Empire came into existence in 330 AD, with Constantinople as
its capital. The Roman Empire was unified under the rule of Constantine. But, after his death, the Roman
Empire was again divided for the last time in 395 AD to form the East Roman Empire called, Byzantine
Empire and the Western Roman Empire. The western half of the Roman Empire fell in 476 AD, the eastern
42
society”, which was very rigid and slavery and debt were prevalent. It could be gathered that
there existed debtor and creditor relationship. The debt was secured by way of giving his-self to
the creditor in case of default of the payment of the debt. Since debt existed, it could very well be
said that credit was not alien to them.
The earliest Roman codification was “Twelve Tables 16” which had been attributed to
451-50 BC17, the time in history which is earmarked to the Republican Rome, and remained in
force for more than a thousand years.18 During that period coined money was introduced; loans
and sales held a prominent position. For the study of ancient Roman law, Corpus Iuris Civilis
(The Body of Civil Law)19 also forms an indispensable part which is accredited to the Byzantine
Emperor (East Roman Empire) Justinian I20.
The enactment of “Twelve Tables” laid emphasis on the verbal part and a symbolic
representation of the ceremony for entering into and completion of the contract. In the Roman
context, private law related to persons, either natural or artificial; things or actions. Parties who
possessed intellectus (understanding) and voluntas (free will) were capable to contract.
half survived for 1,000 more years, and finally fell in 1453 AD. History, Byzantine Empire, available at:
http://www.history.com/topics/ancient-history/byzantine-empire (last visited on December 28, 2015).
16
. The legal history of Rome begins properly with the Twelve Tables. It is strictly the first and only known
code collecting the earliest known laws of the Romans. Till the close of the republican period (509 B.C. -
27 B.C.) the Twelve Tables were regarded as a great legal character. This celebrated code, after its
compilation by a commission of ten men (decemviri), who composed ten sections in 451 B.C. and two
sections in 450 B.C. and its ratification by the then principal assembly (cimitia centuriata) of the State in
449 B.C. was engraved on twelve bronze tablets (whence the name Twelve Tables), which was attached to
Rostra before the Curia in the Forum of Rome. However, no part of the Twelve Tables either in its original
form or in its copies exits today. Author Anonymous, The Twelve Tables, available at:
https://ia600408.us.archive.org/13/items/thetwelvetables14783gut/14783.txt (last visited on October 15,
2015).
17
. Alan Watson, “The Evolution of Law: The Roman System of Contracts” 2 LHR 2(1984), available at:
http://digitalcommons.law.uga.edu/cgi/viewcontent.cgi?article=1491&context=fac_artchop (last visited on
October 06, 2015).
18
. Pherozeshah N. Daruvala, The Doctrine of Consideration treated historically and comparatively 357
(Butterworth & Co, Calcutta, 1914), available at:
https://ia800208.us.archive.org/32/items/cu31924022026250/cu31924022026250.pdf (last visited on March
09, 2015)., (crossed checked on 05.01.17 by the supervisor).
19
For details see The Editors of Encyclopædia Britannica, Encyclopædia Britannica, Code of Justinian, Law,
available at: https://www.britannica.com/topic/Code-of-Justinian (Last Updated January 25, 2007); (last
visited on March 09, 2015).
20
Justinian I reigned from 527 CE to 565 CE, is considered one of the most important late Roman and
Byzantine Emperors. His one of the great achievements was the completion of the Codex Iustinianus
(Codex of Justinian) between 529 CE to 534 CE. This was the bringing together of all the Roman laws that
had been issued from the time of Emperor Hadrian (117 – 138 CE).Will Wyeth, Ancient History
Encyclopedia, Justinian I, Definition, available at: http://www.ancient.eu/Justinian_I/ (Last Modified
September 28, 2012).
43
Therefore, lunatics, infants, slaves were not competent to contract. In the eyes of law, there
existed a difference between an individual and person. A person was one who could be bestowed
with proprietary rights; on the other hand individual may or may not be endowed with such
rights, as in the case of lunatics, infants, such individuals, who were incapable of entering into a
contract and were not persons in the eyes of law.
The Researcher while going through the references had come across that the terms
which we use in today‟s parlance were not used in the same sense as in the ancient Roman
period. For example, pact, convention, contract, all may seem to us to mean similar in today‟s
world but were not used in the same sense in the ancient Roman period. ““….. Ulpian 21 says: “A
simple pact creates no obligation.” Paul22 says: “No right of action at law arises from a mere
pact.”23
According to the Roman theory, for a convention to be transformed into a contract and
become binding in law, must be clothed with “a juristic form” 24 viz. as mentioned in twelve
tables, a contract “with the bronze and the scales,”; the nexum, showing the “bizarre” formalities
of the symbolic sale for “spot cash,” with its “scale bearer” and the five witnesses; formal
contract using religious form – the oath, the sponsio (verbal in nature) and literis (written).
Simple meeting of minds had simply no juristic relevance; though formalism added precision
and certainty to the entire transaction, but it was not devoid of demerits. During this period
formalities constituted one of the essentials in the formation of contract. If one asked “Was there
21
Ulpian, Latin in full Domitius Ulpianus (d. 228 A.D.), was a Roman Jurist and imperial official whose
writings supplied one-third of the total content of the Byzantine emperor Justinian I‟s monumental Digest,
or Pandects (completed 533 AD). The Editors of Encyclopædia Britannica, Encyclopædia Britannica,
Ulpian, Roman Jurist, available at: http://www.britannica.com/biography/Ulpian (Last Updated July 20,
1998); (last visited on April 29, 2016).
22
Paul was one of the leading Late Classical Jurists of the Severan age. Little is known about is origin, but he
held important posts connected with legal administration under the Severan emperors. Most often cited in
the Digest of Justinian, Paul was a voluminous writer. He wrote on virtually every subject in Roman law,
with extended treatments of the civil law and the Praetor‟s Edict. Dennis Kehoe, Wiley online library, The
Encyclopedia of Ancient History, “Paul”, available at:
http://onlinelibrary.wiley.com/doi/10.1002/9781444338386.wbeah26350/abstract;jsessionid=685AD08E97
8178E0B47E1D617BF6104F.f04t02?userIsAuthenticated=false&deniedAccessCustomisedMessage= (last
visited on April 29, 2016).
23
Cited in Edgar S. Shumway, “Ex Pacto Actio Non Nascitur” 51 U.Pa.L.Rev. 268 (1903), available at:
http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=6392&context=penn_law_review (last visited
on April 28, 2016).
24
Ibid.
44
a contract?”25,the reply was “Yes, if the formality was gone through”.26 During this period it was
hard to visualize any contract without formalities.
It may be said that with the passage of time, during the last years of the Republic
Rome, came the “real” contracts and “consensual” contracts. The “real” contract was the “loan
for consumption,” mutuum, which was the gradual modification of contract having secular
formality “with bronze and scales,” called nexum or an oath (sponsio) or the literis contract to
mere delivery of the consumables which created the contract, called mutuum, and gave the right
to bring an action. The other three forms of “real” contracts were the loan for use (commodatum),
the contract of deposit (depositum) and pawn (pignus). The three received its beginning from the
contract of trust (fiducia). If we look into forms of „real‟ contracts, we see that they were contract
of trust; the pact of trust arose in the convention to return.
Gradually the four consensual contracts also developed: sale, hire, agency and
partnership. Sale (emptio-venditio) under the ancient formal system, was a contract of purchase
and sale; under which, one party (usually the seller) provides the permanent possession of an
object by way of stipulationes, or verbal contract, while the other (usually the buyer) pays in
return a certain sum, by way of a stipulations; (so, there were two separate stipulationes). In case
of hire; the contract of “letting and hire” (locatio-conductio), one party had to provide for the
thing, or a certain amount of labor, and the other party had to pay in return a sum of money. In
case of contract of agency (mandatum), under the Roman law, in the contract of “mandate”, one
party charges the other who is to act. Finally, in the contract of partnership (societas), there is a
simple pact in which the members came together with a lawful aim in order to obtain therefrom a
reciprocal advantage.
The above mentioned real and consensual contracts gained recognition in the Roman
law, imposing legal obligations but they were not formal contracts and their validity was not
dependent on the fulfillment/ carrying out of certain formalities. The only condition necessary,
pertained to their actual substance, which related to the utility it imparted to their economic
25
Edgar S. Shumway, “Ex Pacto Actio Non Nascitur” 51 U.Pa.L.Rev.269 (1903), available at:
http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=6392&context=penn_law_review (last visited
on April 28, 2016)., (crossed checked on 04.01.17 by the supervisor).
26
Ibid.
45
purpose (publica utilitas). By virtue of this utility, such transactions were raised from the
nothingness of pacts to contracts.
Importantly, the distinguishing feature in case of informal contract and “bona fide”
contracts on one side and formal contracts and the mutuum on the other side, the latter were
unilateral contracts, i.e. put only one party under an obligation as in the case of nexum. However,
the later contracts in time i.e. the informal contracts and “bonafide” contracts were all bilateral in
nature, which created reciprocal obligations viz. sale, hire, and partnership created such
reciprocal obligations immediately and inevitable i.e. made each party at the same time both
creditor and debtor. The others did not immediately create these reciprocal obligations, but may
later create the reciprocal obligation viz. depositor to pay the depositee‟s expense in preserving
the object, or for the principal to pay the agent‟s expenses. To enforce these obligations, actions
available were called actions contrariae, thereupon making these contracts also bilateral.
According to Sir Frederick Pollock27, in his work “Contracts in Early English Law”,
“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.”28 The earliest recognition of formal contract by Romans was
somewhere before 451 BC,29 Watson discussed that the Romans had not conceived the idea of
contract as we do today and barter was the earliest form of entering into transactions by way of
exchange of commodities, but by the time of “Twelve Tables” the period of the barter system has
crossed. Earlier contracts were derived from the ancient promise by oath and had religious
sanction by way of inviting wrath of the Supernatural powers/Gods in case of breach of the
promise as well as legal sanction by way of enforcement of the contract through Condictio30.
27
Frederick Pollock (b. 1845 – d. 1937) English legal scholar. The Editors of Encyclopædia Britannica
Encyclopædia Britannica, Sir Frederick Pollock, 3rd Baronet, British Scholar, available at:
https://www.britannica.com/biography/Sir-Frederick-Pollock-3rd-Baronet (Last Updated October 24,
2003)., (crossed checked on 05.01.17 by the supervisor).
28
Frederick Pollock, “Contracts in Early English Law” 6 Harv.L.Rev. 390 (1893), available at:
http://www.jstor.org/stable/pdf/1321304.pdf (last visited on December 25, 2015)., (crossed checked on
29
. Alan Watson, “The Evolution of Law: The Roman System of Contracts” 2 LHR 1 (1984), available at:
http://digitalcommons.law.uga.edu/cgi/viewcontent.cgi?article=1491&context=fac_artchop (last visited on
October 06, 2015)., (crossed checked on 05.01.17 by the supervisor).
30
. Condictio - an action against a person for a certain sum of money or later for specific things and still later
for damages of uncertain extent; also under Justinian: any claim for restitution or to prevent unjust
46
To conclude one may say that, generally speaking, contracts under the Roman law
may thus be divided into Formal and Informal Contract. “Gaius Institutiones” categorized
contracts into four classes, namely:
- Verbis – by formal words (Formal Oral Contract).

- Litteris – by way of written entries in the creditor‟s account book (codex acceptiet
expensi) (Formal Written Contract).
- Re – by handing over a thing (Real Contract).
- Consensu – by consensus, a mere informal agreement (Consensual Contract). 31 Real
and Consensual contracts were called as Informal Contracts.
2.1.1 Verbal Contract
According to Maine,32 “The earliest form of contracts in Rome was the Nexum.33; a loan
contract which required symbolic transfer of rights through a formal oath, in the presence of five
witnesses, and liberipens who could by use of set of scales and copper weights borrow money to
the debtor. The debtor provided security for the loan amount by pledging his self to creditor; in
case of default i.e. he became his bondsman. In the time of Justinian, the use of “stipulatio”34
was a mode of making contracts. The word “stipulatio” is derived from the word “stipulum”
meaning firm, coming from the word stips meaning trunk of a tree. Stipulatio was another kind
of a formal contract, in which the parties to a contract entered into the contract through exchange
of words in the form of question and answers verbally. In case of stipulatio there was no
requirement of any witness as was in the case of nexum. The verb used in the transaction was
“spondere” meaning “Do you promise” by the promisor and “spondee” meaning “I promise”, by
enrichment, Merriam- Webster, Condictio, available at: http://www.merriam-

webster.com/dictionary/condictio (last visited on October 06, 2015)., (crossed checked on 05.01.17 by the
supervisor).
31
Cited in R. Zimmermann, Contract, Oxford Classical Dictionary, (2015), available at:
http://classics.oxfordre.com/view/10.1093/acrefore/9780199381135.001.0001/acrefore-9780199381135-e-
1802 (last visited on January 03, 2016)., (crossed checked on 05.01.17 by the supervisor).
32
Sir Henry Maine, in full, Sir Henry James Sumner Maine (b. August 15, 1822 – d. February 03, 1888), a
British jurist and legal historian. The Editors of Encyclopædia Britannica Encyclopædia Britannica, Sir
Henry Maine, British Jurist, Historian and Anthropologist, available
at:http://www.britannica.com/biography/Henry-Maine (Last Updated August 23, 2012)., (crossed checked
33
The original Nexum according to Maine was a sale on credit in Nares Chandra Sen-Gupta, The Evolution of
Law 99 (Firma K L Mukhopadhyay, Calcutta, 3rd Revised edn., 1962).
34
. Also known as sponsio.
47
the promisee. “Stipulatio” was one of the formal contracts as it observed some symbolic
formalities prescribed by jus civile to impress upon the parties the seriousness of what they were
doing. The basis of recognition of contracts varied from specified formalities to recognition of a
particular subject matter. The contract stipulation excluded mancipatio, 35 in jure cession, 36
nexum,37required the agreement to be expressed in a definite verbal form. Performing of the
formality was the sine qua non of the contract; any slip in the formality relived the other party
from performance of the contract. Stipulatio was considered unacceptable in case of friends as it
did not create any legal obligations in case of friends. “The very request for a stipulatio would
imply distrust and misgivings.”38 Both nexum and stipulatio were verbal oral formal contracts.
2.1.2 Litteris Contract
Since Romans were exceptionally literate, writing became essential for the formation of
contract and conferred validity and enforceability to the contract. Litteris (writing) provided
“causa” to the contract and Romans developed this form of contract, through the gradual
observance of book keeping and accounting practices of the Romans. Romans are believed to be
great accountants who kept two books of accounts – Adversaria and Codex Acceptiet Expensi.
These books maintained debit and credit entry. In case of sale and purchase, where the buyer had
to make the payment of the purchase at a future date, the seller made the entry of purchase (the
amount), in the book of account, which the buyer had to pay, in such a case, the obligation to pay
did not arise from the transaction but from the entry made by the seller in his books of accounts,
which could be used in the court for the enforcement of the contract. The codex was limited to
monetary transaction only.
35
. Mancipatio– Formal contract for economic purpose for the sale against ready money carried out before five
witness and libripens (a weigher or a balance holder).
36
. In jure cession - a procedure in Roman law whereby a defendant formally admits or concedes before the
praetor the justice of the plaintiff's claim to specific property and the praetor then adjudges it to belong to
the plaintiff. Slovar-Vocab.com, In Jure Cessio, available at: http://slovar-vocab.com/english/websters-
international-vocab/in-jure-cessio-8530853.html. (last visited on January 15, 2016).
37
. Nexum- a type of formal contract involving the loan of money under such oppressive conditions that it
might result in the debtor‟s complete subjection to the creditor. The transaction was accomplished by
means of a ritual employing scales and copper, the traditional symbols of transfer of property. The Editors
of Encyclopædia Britannica, Encyclopædia Britannica, Nexum, Law History, available at:
http://www.britannica.com/topic/nexum (Last Updated July 20, 1998); (last visited on January 15, 2016).
38
David Locke Hall and F. Doughlas Raymond “Economic Analysis of Legal Institutions: Explaining an
“Inexplicable” Rule of Roman Law” 61 Ind.L.J. 405 (1986), available at:
http://ilj.law.indiana.edu/articles/61/61_3_Hall_Raymond.pdf (last visited on January 15, 2016).
48
2.1.3 Real Contracts
Mutuum was loan for consumption and was the earliest39 form of real contracts; where
the fungible (a good replaceable by an identical item) items were delivered by the owner to the
other for consumption. Unlike, commodatum, where the thing was delivered for use and not for
consumption. In case of mutuum the party who received the item for consumption promised to
return not the same thing but another fungible item of the same kind to the owner, at the time
which parties agreed. Depositum was another form of real contract, where the thing was handed
over by the owner to the other party for safe custody. It was a gratuitous contract based on good
faith, bailee was obliged to take reasonable care of the thing in question without any kind of
reward in return. Pignus was a contract of pledge, the thing was given in the possession by the
debtor to the other party as security of the debt; therefore pignus (possessory) was created by the
delivery of the possession. Commodatum was the contract of loan for use, it was a gratuitous
loan of thing for use, without requiring the bailee to pay for the use, and the ownership was
retained by the bailor. The borrower was required to return the very same thing borrowed at the
time agreed by the parties.
2.1.4 Consensual Contracts
Emptio-venditio – Sale was a consensual contract; it was later development and “there
was no contract of sale until about 200 B.C.” 40 Under this contract, the seller undertook to
deliver the thing agreed upon/subject matter of the sale to the buyer for a price in return. “In an
executory sale contract, the price had to be in money. Otherwise, the parties‟ agreement would
not be the enforceable contract of executory sale, but the unenforceable contract of executory
barter –permutatio”41. Locatio-conductio was a contract of hire which included three types of
contract–locatio-conductio rei (hire of things), locatio-conductio operarum (hire of services)
and locatio-conductio operis (hire of work). Locatio-conductio, was bilateral in nature, an
39
Edgar S. Shumway, “Ex Pacto Actio Non Nascitur” 51 U.Pa.L.Rev.271 (1903), available
at:http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=6392&context=penn_law_review (last
visited on January 01, 2016)., (crossed checked on 05.01.17 by the supervisor).
40
Alan Watson, “The Evolution of Law: The Roman System of Contracts”, 2 LHR 3 (1984), available
at:http://www.jstor.org/stable/pdf/743908.pdf?acceptTC=true (last visited on January 07, 2016).
41
David Locke Hall and F. Doughlas Raymond “Economic Analysis of Legal Institutions: Explaining an
“Inexplicable” Rule of Roman Law” 61 Ind.L.J. 407 (1986), available at:
http://ilj.law.indiana.edu/articles/61/61_3_Hall_Raymond.pdf (last visited on January 15, 2016)., (crossed
checked on 05.01.17 by the supervisor).
49
agreement of letting and hiring of a thing for use by owner to another in return for a fee which
was fixed. The contract was formed by consent, without any special form or words or writing or
other formality being required. Locatio-conductio rei was a contract where the lessor (locator)
let a thing to the lessee (conductor) in return of a payment. It applied for both movable and
immovable properties. Locatio-conductio operarum was a contract of service, where one party
hired the services of the other party in return of remuneration in money. Locatio-conductio
operis was a contract between the workman and employer, where the workman undertook to do
a particular work in return for a specified sum by the employer. Mandatam was derived from
manu and datum, meaning giving of a thing to another and “sealed by the shaking of right
hands.”42 Under the contract of mandatum, the agent, on the request of the principal undertook
to provide his services free of charge. If the party fixed the fee for the services, then it took the
form of hire rather than mandatum. Societas - In general, was a voluntary association between
two or more persons. It did not have an “identity” different and separate from its members.
Societas was a consensual contract which required no formalities. It was a body of persons
which could be dissolved voluntarily. There were four kinds of partnership namely, Universal
Partnership – under this form of partnership the existing and the acquired property became the
common property of all the members; Commercial Partnership and Partnership for conducting
business – Former partnership was entered for an ordinary commercial purpose, latter was for
carrying on a business or profession; Partnership for a single transaction – It was a form of
partnership which was entered into for a single venture. The Roman formulary system
resembles the Early English law system.
2.2 ANGLO-SAXON (410-1066)43
The researcher for the study of the English law44 would endevour her research from the
time of Anglo-Saxons in Britain till the Nineteenth century. Before we take a plunge in the law
42
Andrew G. Deere, “The Contract of Mandatum and The Notion of Amicitia in the Roman Republic”, 6
National Library of Canada, Ottawa, (1994), available at: http://digitool.library.mcgill.ca/R/?func=dbin-
jump-full&object_id=22578 (last visited on January 10, 2016)., (crossed checked on 05.01.17 by the
supervisor).
43
The Editors of Encyclopædia Britannica, Encyclopædia Britannica, Anglo-Saxon, People, available at:
https://www.britannica.com/topic/Anglo-Saxon (Last Updated March 10, 2015)., (crossed checked by the
supervisor on dated 11/01/17)
44
Romans left Britain in 410 A.D. The Anglo Saxons established themselves in Britain in 410 A.D. (BBC,
History, Ancient History, Anglo-Saxons, available at: http://www.bbc.co.uk/history/ancient/anglo_saxons/
(last visited on March 30, 2016)., they were succeeded by Vikings in the year 800 AD (BBC, History,
50
of contract during the Anglo-Saxon period, a bird‟s eye view of the Anglo-Saxon society and of
a judicial structure is important. The English Common law has eventually grown or originated
from the decisions of the Judges, and is often called as the Judge made law.
Generally speaking the society during the Anglo Saxon period was divided into
freemen and slaves, the ordinary freeman was a “ceorl” or churl and noble by birth was an
“eorl”, sometime later he was referred as “thegn”. This structure gave rise to an elaborate
arrangement of land tenure (lordship, with king as an overlord), leading to medieval feudalism.
Land occupied an important place during the Anglo-Saxon Period.
The public justice system was dispensed through the ordinary Anglo Saxon courts,
namely the County courts (held twice a year) and Hundred courts (held every four weeks) which
dealt with all cases and were an open air meetings attended by the freeman and the “suitors”,
who were bound to attend them. County and hundred were the administrative divisions, hundred
was the smallest division. The necessity for the law of procedure was greatly felt in the
dispensation of justice. The law of procedure, which meant “forms” at the courts, was
complicated and formal. “The right word must be said without slip or trip, the due ceremonies
must be punctiliously performed, or the whole transaction will go for naught.”45 The two primary
mode of proofs were oath46 by oath helpers also called as compurgation or wager of law and
ordeal, later trial by battle also was used before the Normans period.
Ancient History, Vikings, available at: http://www.bbc.co.uk/history/ancient/vikings/ (last visited on

March 30, 2016)., followed by Normans in the year 1066 AD. Post Normans from the Year 1154- 1485, is
said to the Middle Ages in the British History. It is believed to be that period in history, during which the,
English Common Law originated in the King‟s Court (Curia Regis) (US Legal, Origins of Common Law,
available at: https://commonlaw.uslegal.com/origins-of-common-law/ (last visited on March 30,
2016).,(crossed checked by the supervisor on dated 11/01/17) and came to be established gradually. After
the Middle Ages (1154-1485), the history witnessed the Tudors (1485 – 1603), followed by the Civil War
and Revolution from 1603 – 1714. It was during this time that English came to India and gradually, India
became one of the colonies of Britain. British history witnessed the growth of the British Empire and its
Sea Power. Time from 1837 – 1901 is attributed to be the phase of Victorian Britain. (For details on time
periods see BBC, History, British History, available at: http://www.bbc.co.uk/history/british/ (last visited
on March 30, 2016)., (crossed checked by the supervisor on dated 11/01/17).
45
Cited in A.H.F. Lefroy, “The Anglo-Saxon Period of English Law” 26 Yale L.J. 298 (1917), available at:
http://www.jstor.org/stable/pdf/786820.pdf (last visited on March 24, 2016)., (crossed checked by the
supervisor on dated 11/01/17).
46
In case of a disputed fact, the number of oath helpers (the number of person required to swear) varied
according to the nature of the case and the rank of the person concerned. The task of oath taking was
equally tedious and complicated, “In the first place, the ceremonial rules must be strictly observed; as set
form of words must be pronounced; a slip, a stammer, will spoil all, and the adversary will win his
cause….. , and that those who perjure themselves are often struck dead, or reduced to the stature of dwarfs,
or find that they cannot remove their hands from the relics they have profaned.” Cited in A.H.F. Lefroy,
51
The preservation of peace was one of the important matters dealt during the Anglo-
Saxon period, by way of customs it came under the jurisdiction of the local courts. The
expression “the King‟s peace47,” was different in terms of peace of the lord of the manor, peace
“The Anglo-Saxon Period of English Law” 26 Yale L.J. 300 (1917), available at:
supervisor on dated 11/01/17). In case the party failed in oath helpers, the accused person had to go for one
of the forms of the ordeal namely sinking or floating in cold water, recovery within a limited time from the
effect of plunging the arm into the boiling water, or of handling red hot iron. Under no circumstances, a
person who was found with the stolen property or caught red-handed could wage his law, such man was put
to the ordeal as the only alternative for him. Since gradually the clergy started adding ceremonies to the
process, it was “In 1215 that the Fourth Lateran Council forbade the clergy to take part in the ordeal.”
A.H.F. Lefroy, “The Anglo-Saxon Period of English Law” 26 Yale L.J. 301 (1917), available at:
supervisor on dated 11/01/17). Ordeal was one of the form which was an ecclesiastical matter, it followed a
set procedure, “….. a solemn appeal made to God as the righteous Judge”. A.H.F. Lefroy, “The Anglo-
Saxon Period of English Law” 26 Yale L.J. 301 (1917), available at: http://www.jstor.org/stable/786820
(last visited on March 24, 2016)., (crossed checked by the supervisor on dated 11/01/17). A.H.F Lefroy, in
his work “The Anglo-Saxon Period of English Law” cites the procedure of the ordeal as “Concerning the
ordeal we enjoin by command of God and of the archbishop and all the bishops the fire is lighted in the
church, and the church, and the church is closed to all but the mass priest and the person who is to go to the
ordeal. A distance is to be marked nine steps, according to the steps of the accused, from the mark to the
stake on which he ordeal, i.e., the hot water or hot iron, is placed. The kettle that contains the water may be
of iron or brass or lead or clay; the water is to bubble up before boiling, a stone is placed in the kettle. The
culprit bares his hand ; if the accusation requires simple purgation, it is enough if he plunge it up to his
wrist ; for a threefold one it must go in up to the elbow. Before the critical step is taken two men of each
side are to go in and test whether the water is as hot as the rule enjoins; then let a certain number of each
party go in and stand in a row along the sides of the church. These witnesses must be fasting. The priest is
to sprinkle them with holy water, and let them taste it, and give them all the book and the crucifix to kiss.
”Cited in A.H.F. Lefroy, “The Anglo-Saxon Period of English Law” 26 Yale L.J. 301 (1917), available at:
http://www.jstor.org/stable/pdf/786820.pdf (last visited on March 24, 2016).,(crossed checked by the
supervisor on dated 11/01/17).“In the case of the ordeal of hot iron the order is even more minute. The
service begins with benediction; the fire has been lighted and the iron laid thereon. After the beginning of
the benediction the fire is not to be stirred; the service proceeds to the last collect, when that has been said,
it is to be taken from the fire and put on the staple or stool, and there is to be solemn silence.” A.H.F.
Lefroy, “The Anglo-Saxon Period of English Law” 26 Yale L.J. 302 (1917), available at:
supervisor on dated 11/01/17)“Let there be on other speaking within, except that they earnestly pray to
Almighty God that He make manifest what is soothest; and let him go thereto, making the nine steps. At the
first signal he must put his right foot on the staple, at the second the left foot, then grasp the iron at the third
signal, and throw it forward, then hasten to the altar and have his hand covered and sealed to the third day.
According to the state in which it shall be found on the third day, his guilt or innocence is proved.” Cited in
http://www.jstor.org/stable/pdf/786820.pdf(last visited on March 24, 2016)., (crossed checked by the
47
Initially breach in the King‟s peace was a graver matter in comparison to the originally beach of public
order. Gradually from the Norman times the expression “The King‟s peace” concurred with the concept of
the general peace. The king was a party in cases of breaches of his peace and his justices tried the matter.
According to the Anglo-Saxon idea of compensation, “If you injured me you must pay the bót. If you
injured the king by violating his peace, you must pay the fine due to him, and he, therefore, prosecuted.”
Cited in A.H.F. Lefroy, “Anglo-Saxon Period of English Law II” 26 Yale L.J. 390 (1917), available at:
https://www.jstor.org/stable/pdf/785924.pdf (last visited on March 17, 2016)., (crossed checked by the
supervisor on dated 11/01/17). With respect to the preservation of peace, a system known as “frankpledge”
52
of churches etc. “The origin of it is to be traced to the notion that a stranger who broke the peace
of a house must make atonement to the head of that house.”48
2.2.1 Law of Contract During The Anglo Saxon Period
A.H.F. Lefroy49 in his work “The Anglo-Saxon Period of English Law” states “We
find the proper starting for the history of English law in what are known as Anglo-Saxon
times.”50He cites Sir Frederick Pollock51 and Frederic William Maitland52 from their work “The
History of English Law” stating “Our laws, as they exist to-day, have been formed in the main
from a stock of Teutonic customs, with some additions of matter, and considerable additions or
modifications of form received directly or indirectly from the Roman system; and both the
Germanic and Romanic elements have been constituted and reinforced at different times and
from different sources.”53
appeared, in which eventually it became obligatory for every freeman to be a part of a group of ten called
tithing (during the time of Canute). Every freeman must belong to the tithing, each member within the
tithing was responsible for each other‟s good behavior, and each acted as “frith-borh” (later as frankpledge)
for the other as security for peace. The members of the tithing were like perpetual bail for each other,
members as a frith-borh were bound to produce the member who was summoned by the court, in case of
failure they were obliged to make good the penalty of the offence of which the person was accused. Besides
the security of the frankpledges, every man was bound to have a lord or patron in whose protection or mund
he was. “As the frith-borh secured his responsibility to justice, the protection of the mund was intended to
secure justice for him. If he was slain or injured, the mund was said to be broken, and the culprit had to
make compensation to the lord, as well as to the relations of the injured person.” A.H.F. Lefroy, “Anglo-
Saxon Period of English Law II” 26 Yale L.J. 391 (1917), available at:
https://www.jstor.org/stable/pdf/785924.pdf (last visited on March 17, 2016).
48
https://www.jstor.org/stable/pdf/785924.pdf (last visited on March 17, 2016).,(crossed checked by the
49
Lefroy, Augustus Henry Frazer, was a lawyer, university professor, editor, and author; b. June 21, 1852 in
Toronto, d. March 7, 1919. Dictionary of Canadian Biography Vol. XIV (1911-1920), available at:
http://www.biographi.ca/en/bio/lefroy_augustus_henry_frazer_14E.html (last visited on April 25,
2016).,(crossed checked by the supervisor on dated 11/01/17).
50
http://www.jstor.org/stable/pdf/786820.pdf (last visited on March 24, 2016).
51
Sir Frederick Pollock, 3rd Baronet, b. December 10, 1845, London – d. January 18, 1937, London) was a
English legal scholar, noted for his History of English Law Before the Time of Edward I, 2 vol. (with F.W.
Maitland, 1895) and his correspondence over 60 years with U.S. Supreme Court Justice Oliver Wendell
Holmes. The Editors of Encyclopædia Britannica, Encyclopædia Britannica, Sir Frederick Pollock, 3rd
Baronet, British Scholar, available at: http://www.britannica.com/biography/Sir-Frederick-Pollock-3rd-
Baronet (Last Updated October 24, 2003)., (crossed checked by the supervisor on dated 11/01/17).
52
Frederic William Maitland (b. May 28, 1850, London, England – d. December 19, 1906, Canary Islands,
Spain) was an English jurist and historian of English law whose special contribution was to bring historical
and comparative methods to bear on the study of English institutions. The Editors of Encyclopædia
Britannica, Encyclopædia Britannica, Frederic William Maitland, British Jurist, available at:
http://www.britannica.com/biography/Frederic-William-Maitland (Last Updated October 17, 2006).,
(crossed checked by the supervisor on dated 11/01/17).
53
Supra note 45 at 291.
53
In the words of Edward Jenks54 in his work “A Short History of English Law From
The Earliest Times To The End Of The Year 1911”, he states “If it be asked whether, in this55
early period, there was anything which, without abuse of terms, may be called a Law of Contract,
or a Law of Tort, it must be answered that, if we insist on modern distinctions, there was not. But
if we are content to look for primitive practices which may afterwards give rise to these modern
ideas, we shall not look entirely in vain. For in the practices of giving „wed‟ (pledge), or security
for the performance of some act, or „borh‟ (bail), as surety for good conduct, we see undoubtedly
the legal ancestors of the ancient contracts of pledge and guarantee”56.
As one takes the history of Roman law to begin with the Twelve tables, one may very
well take the history of English law, to begin with the first written Code of Æthelbert, King of
the Kentish men, who caused the laws of his people to be set down in writing.
With respect to the concept of consideration, while going through the book “Essays in
Anglo- Saxon Law”, one does find reference of the term “consideration”, but is humbly
submitted by the researcher that the term so used, is used in the loose sense of the term and not
as it started to be used in the middle ages with the origin of the English Common Law. Cabot
Lodge, in the chapter “The Anglo-Saxon Land-Law” in the book “Essays in Anglo-Saxon Law”
has now and then used the term consideration, he states “There was always a consideration
expressed, in most cases of a purely religious kind…”57 He further states that “In some case, the
consideration was, in modern language, a purely valuable consideration….”58 Stating further he
says, “In many cases, the valuable consideration is united with a religious one..” 59 The Appendix
in the book “Essays in Anglo-Saxon Law” mentions some select cases in Anglo-Saxon Law, on
going through them the researcher finds reference of the term consideration. Earliest mention of
54
Edward Jenks (1861-1939), Professor of Law, was born on February 20, 1861 at Lambeth, London. In 1892
Jenks held distinguished posts successively at University College, Liverpool, Oxford University, the Law
Society, London, and the University of London. For details see Ruth Campbell, Australian Dictionary of
Biography, Jenks, Edward (1861-1939), available at: http://adb.anu.edu.au/biography/jenks-edward-6837
(last visited on April 25, 2016)., (crossed checked by the supervisor on dated 11/01/17).
55
A period before the Norman Conquest.
56
Edward Jenks, A Short History of English Law from the Earliest Times to the End of the Year 1911 12
(Little, Brown, and Company, Boston, 1913), available at:
https://ia601409.us.archive.org/7/items/shorthistoryofen00jenk/shorthistoryofen00jenk.pdf (last visited on
April 03, 2016)., (crossed checked by the supervisor on dated 11/01/17).
57
Essays in Anglo-Saxon Law 103 (Little, Brown, and Company, Boston, 1905), available at:
https://ia902702.us.archive.org/33/items/essaysinanglosax00adamuoft/essaysinanglosax00adamuoft.pdf
(last visited on March 31, 2016)., (crossed checked by the supervisor on dated 11/01/17).
58
Id. at 104.
59
Ibid.
54
the term consideration is in Case no. 3, Heathored, 781, Cod. Dip. CXLIII60; Case no. 17,___ ,
After 900, Cod. Dip. CCCXXVIII61; Case no. 26, Æthelred, After 1000, Cod. Dip. DCCIV62;
Case No. 30, Ealdred, 1046-1060, Cod. Dip. DCCCV63.
Robert L. Henry in his article “Consideration in Contracts 601 A.D. to 1520 A.D.”64
has tried to know the origin of the doctrine of consideration, he attributes the shaping of the
doctrine of consideration to two agencies, one is the jurisdiction of the chancellor over parol
contracts before assumpsit and other is the enforcement of parol contracts before assumpsit.
Since it appears that the Doctrine of Consideration is a later development, we would come to that
in the next section. Presently in this section, we would be discussing about the contracts during
the Anglo-Saxon Period in the English Law.
A.H.F.Lefroy cites in his work “Anglo-Saxon Period of English Law” that “The law of
contract is rudimentary, so rudimentary as to be barely distinguished from the law of property; it
may be described as an insignificant appurtenance to the law of property.” 65 “There is no
evidence of any regular process of enforcing contracts….” 66 Burton F. Brody 67 in his article
“Anglo-Saxon Contract Law: A Social Analysis” has put forward various differences of opinions
as to Anglo-Saxon contract law, Sir Frederick Pollock68 and Frederic Maitland69 “asserts that the
60
Id. at 313.
61
Id. at 338.
62
Id.at 362.
63
Id at 368.
64
Robert L. Henry, “Consideration in Contracts 601 A.D. to 1520 A.D.” 26 Yale L.J. 664 (1917), available
at: https://www.jstor.org/stable/pdf/786268.pdf (last visited on March 30, 2016).
65
http://www.jstor.org/stable/pdf/785924.pdf(last visited on March 17, 2016)., (crossed checked by the
66
Ibid.
67
Burton F. Brody, is an Professor Emeritus of Law and Director, Summer Preparatory Program and
Academic Achievement Program at the Sturm College of Law, University of Denver, had done his B.S.C in
1959, J.D., in 1961 from DePaul University and LL.M. in 1978 from Northwestern University. University
of Denver, Faculty Profile, Home, Directory, Burton F. Brody, available at:
https://www.law.du.edu/index.php/profile/burton-f-brody (last visited on April 27, 2016)., (crossed checked
by the supervisor on dated 11/01/17).
68
Sir Frederick Pollock, 3rd Baronet, b. December 10, 1845, London – d. January 18, 1937, London) was a
English legal scholar, noted for his History of English Law Before the Time of Edward I, 2 vols. (with
F.W. Maitland, 1895) and his correspondence over 60 years with U.S. Supreme Court Justice Oliver
Wendell Holmes. The Editors of Encyclopædia Britannica, Encyclopædia Britannica, Sir Frederick
Pollock, 3rd Baronet, British Scholar, available at: http://www.britannica.com/biography/Sir-Frederick-
Pollock-3rd-Baronet (Last Updated October 24, 2003)., (crossed checked by the supervisor on dated
11/01/17).
69
Frederic William Maitland (b. May 28, 1850, London, England – d. December 19, 1906, Canary Islands,
Spain) was an English jurist and historian of English law whose special contribution was to bring historical
and comparative methods to bear on the study of English institutions. The Editors of Encyclopædia
55
Anglo-Saxon contract, if it existed at all, was extremely rudimentary”.70 “Professor Holdsworth71
is equally certain that there was no Anglo-Saxon contract law because of the unavailability of
enforcement.” 72 “On the other hand, Professor Harold Hazeltine 73 is quite certain that pre-
Norman English made great use of the contract.”74
Burton in his article “Anglo-Saxon Contract Law: A Social Analysis” states the reason
for such conflicting opinions: Firstly, “the conflicts in fundamental attitudes about contracts and
differences in approach to them.”75 Secondly, according to Burton, there “appears to be tendency
on the part of those denying the existence of contracts during the period to place the subject
within property law or criminal law.”76
The researcher here agrees with the view of Sir Henry Maine, that placing legal
concepts in specialized categories is the activity of intellectually advanced society. It has also
been reiterated by various jurists above (supra mentioned) that the law of contract during the
times of Anglo-Saxon period was rudimentary and some also agree that we find the rudiments
from which eventually, the law of contract emerged. During this period, the law of contract is
felt to be greatly intertwined with the law of property and conveyance. One finds a great degree
of overlap between law of property, law of conveyance and law of contract. In the words of
Maine, “[T]he movement of progressive societies have hitherto been a movement from Status to
Contract.” 77 According to Burton, the words of Maine disclose two observations: “[Firstly],
primitives recognized binding agreements, but the scope of their applicability was limited;
Britannica, Encyclopædia Britannica, Frederic William Maitland, British Jurist, available at:
http://www.britannica.com/biography/Frederic-William-Maitland (Last Updated October 17, 2006); (last
visited on April 27, 2016).
70
Cited in Burton F. Brody, “Anglo-Saxon Contract Law: A Social Analysis” 19 DePaul L.Rev. 270 (1969),
available at: http://via.library.depaul.edu/cgi/viewcontent.cgi?article=3003&context=law-review (last
71
Sir William Searle Holdsworth (b. May 07, 1871 – d. January 02, 1944), was Vinerian Professor of English
Law at Oxford University, a legal historian, amongst whose work is the 17 volume History of English Law,
Wikipedia, William Searle Holdsworth, available at:
https://en.wikipedia.org/wiki/William_Searle_Holdsworth (last visited on April 27, 2016)., (crossed
checked by the supervisor on dated 11/01/17).
72
Supra note 70.
73
Harold D. Hazeltine (b.1871-1960) lawyer, educator, legal scholar, jurist.. Oxford Dictionary of National
Biography Harold Hazeltine, available at: http://www.oxforddnb.com/index/64/101064541/ (last visited on
March 09, 2016).
74
Cited in Burton F. Brody, “Anglo-Saxon Contract Law: A Social Analysis” 19 DePaul L.Rev. 270 (1969),
available at: http://via.library.depaul.edu/cgi/viewcontent.cgi?article=3003&context=law-review(last
visited on March 09, 2016)., (crossed checked by the supervisor on dated 11/01/17).
75
Ibid.
76
Id. at 271.
77
Id. at 272.
56
[secondly], by implication, the Saxons were on the road to modern law because they enforced
voluntary undertakings.”78
Supporting the view of Sir Henry Maine in which he states that the movement of
progressive societies have hitherto been a movement form Status to Contract, the researcher is of
the view that this is the case in every society, so was the case in Anglo- Saxon period, we find
that concepts which were initially intertwined and overlapping but they gradually moved towards
the path of separate demarcations and building its own identity distinct from others.
Sir Henry Maine says: “[T]wo main essentials of a contract are these: first a
signification by the promising party of his intention to do the acts or observe the forbearances
which he promises to do or observe. Secondly, a signification by the promise that he expects the
promising party will fulfill the proffered promise.” 79 Based on the above observation Burton
states, that “Anglo Saxons enforced voluntary undertakings of a contractual nature.”80
On the other side of the continuum, Frederick Pollock in his work “Contracts in Early
English Law” stating “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 them”. 81
This can be stated as one instance of entering into a contract during the Early Anglo-Saxon
Period, in which entering into contract in presence of witnesses formed one of the essentials in
entering into a contract.
Frederick Pollock in his work “Contracts in Early English Law”, states, “The law of
contract holds anything but a conspicuous place among the institutions of English law before the
Norman Conquest; in fact, it is rudimentary.” 82 He further states that “Anglo-Saxon society
barely knew what credit was, and had not occasion for much regulation of contracts. 83
But, Robert L. Henry, Jr. in his article “Forms of Anglo-Saxon Contracts and Their
Sanctions” has talked about eight forms of contract during the Anglo-Saxon period namely, “1.
78
Ibid.
79
Ibid.
80
Ibid.
81
Frederick Pollock, “Contracts in Early English Law” 6 Harv.L.Rev. 389 (1893), available at:
http://www.jstor.org/stable/pdf/1321304.pdf (last visited on December 25, 2015)., (crossed checked by the
82
Ibid.
83
Ibid.
57
the Surety Contract, including (a) the creditor‟s rights against the debtor, (b) the creditor‟s right
to sue the surety, and (c) the surety‟s right of reimbursement; 2. the Warranty Contracts,
including (a) warranty of title, and (b) warranty of quality; 3. the Contract of Court Record; 4.
the Contract of Plighted Faith; 5. the Pledge Contract; 6. the “Delivery-Promise”; 7. the Written
Contract; and 8. the “Earnest” Contract.”84
2.2.1.1 The Surety Contract
During the Anglo-System period, feuds were common; a means to bring the vengeance
of the people to tolerable limits had to be sought. The system of wergelds also called as the
system of private peace treaty, was one such system, under which the wrong doer (slayer) was
required to pay a set amount of compensation to the family members of the one slained. The
question which needed to be answered was whether, they could at all be enforced?85 The answer
was no, the mechanism to enforce such transaction was not present. Therefore, came the system
of sureties. The surety was required to ensure the appearance of the party in the court when
called and to guarantee compliance by the party.
The mechanism of surety was not restricted to fueds, it covered areas like theft and
other offences, under which the surety was required to catch hold of the thief within a specified
time, in case he escaped, and bring him back to the court.86 In case the party was convicted in the
court, the job of the surety was to provide for the penalties and assurance of the future good
behavior of the accused. 87 On the payment of penalties and assurance of the future good
behavior, the accused could be released. The wed ceremony meant a set procedure which needed
to be followed in the presence of witnesses. During the Anglo Saxon period writing was not well
known, therefore witnesses formed an essential part of the whole transaction. The purpose of the
procedure and witness was to impress on the minds of the witnesses, what transaction took
place.88 The procedure was followed in the open public. Wed meant a stick or a slayer‟s spear,
which was delivered to the family members of the slained, symbolizing the assent of the slayer to
fulfill his obligation to pay the wergild (compensation) to the family members of the slained. The
84
Robert L. Henry, Jr, “Forms of Anglo-Saxon Contracts and Their Sanctions” 15 Mich.L.Rev552 (1917),
available at: http://www.jstor.org/stable/pdf/1275428.pdf?acceptTC=true (last visited on March 09, 2016).
85
Burton F. Brody, “Anglo-Saxon Contract Law: A Social Analysis” 19 DePaul L.Rev. 274 (1969), available
at: http://via.library.depaul.edu/cgi/viewcontent.cgi?article=3003&context=law-review (last visited on
March 09, 2016)., (crossed checked by the supervisor on dated 11/01/17).
86
Id. at 275.
87
Id. at 276.
88
Id. at 277.
58
purpose of this wed ceremony was to let the aggrieved family members give up their vengeance
by payment of wergild.89
In case of private peace treaties, the slayor to evade the vengeance of the family
members of the slained, resorted to paying of the wergild. This in turn made them the debtor and
creditor of the each other respectively. The surety in such transactions were hostages generally,
whose liability to pay the sum was primary. 90 Such sureties (guarantors/ hostages) ensured and
preferred payment to the creditor because by making the payment they could avoid the wrath of
the creditor. The surety was referred to as borh, in case of default were required to surrender on
demand. “This ceremony of wed and borh lent itself to every type of undertaking and, as
modified and refined, became the form of every kind of transaction.”91 One may say that, in the
Anglo-Saxon law, it was wed ceremony which constituted one of the essentials of the
transaction. Together with the wed ceremony; initially, it was witnesses who were required in the
wed ceremony, since the witnesses were not sufficient in providing enforceability of the
transaction, the need of surety was felt and thus came the surety contracts.
2.2.1.2 Warranty Contracts
Witnesses formed an essential part of any transaction or ceremony during the Anglo-
Saxon period and the transaction without witnesses was taken to be imperfect. During the time of
Ethelred I 92 , we come across laws, which state the requirement of sureties and witnesses in
transaction of buying or exchange. The question arises why have witnesses or sureties?
Witnesses safeguarded against the charge of theft, “they were of use in proving that a defendant
was vendor and warrantor of title They thus enabled a purchaser to compel his vendor to defend
in his place; and were also witnesses of the vendor‟s obligation to compensate his vendee in case
the chattel had to be given up on the claim of a third party.” 93 Sureties were important in
89
Id. at 278.
90
Ibid.
91
Burton F. Brody, “Anglo-Saxon Contract Law: A Social Analysis” 19 DePaul L.Rev. 279 (1969), available
at: http://via.library.depaul.edu/cgi/viewcontent.cgi?article=3003&context=law-review (last visited on
March 09, 2016)., (crossed checked by the supervisor on dated 11/01/17).
92
Aethelred I (d. April 871) was the king of Wessex and of Kent. The Editors of Encyclopædia Britannica,
Encyclopædia Britannica, Aethelred I, King of Wessex and Kent (865/866-871), available at:
https://www.britannica.com/biography/Aethelred-I (Last Updated July 28, 1999); (last visited on March 09,
2016).
93
Robert L. Henry, Jr, “Forms of Anglo-Saxon Contracts and Their Sanctions” 15Mich.L.Rev.642 (1917),
available at: https://www.jstor.org/stable/pdf/1276348.pdf (last visited on March 09, 2016).
59
situations where the warrantor was unwilling to appear in the court, there the sureties could
compel and ensure his presence in the court of law.
An illustration94 of a case -A sued B for the recovery of the stolen cattle, B could be
freed from the charge, if he could prove that he bought the chattel from C. The proof was by way
of admission of the fact of sale by C. The cattle was now given into the hands of C, who
admitted the sale to B. B was relived of the charges and the suit proceeded against C. C could
escape liability, if he could prove ownership or defend himself by way of a warrantor, who
warranties his ownership. If he fails to do so, he had to give the cattle to A. The principle was
simple, if the cattle was stolen; the owner could claim it by vouching warranty, bringing the
person who sold the cattle to him. In case he failed, let the owner take possession of the cattle. In
our case, B was freed from charges, but what remedy he had, since his cattle was given in the
hands of C to defend his title. B had a right to get another chattel from C. The courts only
determined the rights of the parties; they had nothing to do with their enforcement. Then, what
was the fate of such right(s) which could not be enforced at the court of law. The remedy rested
with the sureties. In our illustration, it was the sureties who had compelled C to take place of B
and to hold his obligation of warranty. The same sureties would compel C to provide B with
another chattel. It is important to understand, that in the entire transaction it is difficult to
visualize a possibility in which the person who is supposed to vouch a warranty, refuses to
warranty, the reason being, sureties were required at the time of making of the contracts. Their
presence ensured that they would see to it that the one vouching warranty does not step back.
Witnesses were also essential in every part of the formality or ceremony. Earliest laws
mentioned the presence of only witnesses in the transaction but gradually sureties also became
essential in the transactions. In the warranty of title, the title passed by the acts of exchange of
weds between the principal and their respective sureties, there was no verbalization required.
In case of warranty of quality, “betrothals can be a possible indication that the Anglo-
Saxon made specific warranties of quality.” 95 The wed ceremony was also the part of the
betrothal ceremony. The purchaser of the maiden and the relatives of the maiden both would give
sureties. The word wedding is believed to have originated from the word „wed‟. The warranty of
quality also applied to sale transactions and the quality was by express words. The oath ran as
94
Id. at 640.
95
60
follows: “In the name of Almighty God, thou dids‟t engage to me sound and clear that which
thou soldest to me, and full security against after-claim, on the witness of N., who then was with
us two.”96The witness testified the words of warranty. In case of warranty of title, the fact that
the sale was witnessed by the witnesses and surety contract was entered into, contract was
sufficient to defend the title. But in case of warranty of quality, the focus was on words spoken.
The laws of Æthelbert, says, “A man who bought a maiden with cattle and found that there was
guile, was declared to have a right to have his property restored to him”97
2.2.1.3 The Contract of Court Record
The first reference to it seems to be in the laws of King INE. 98 The contracts which
were entered in the presence of the kings, his magistrates, in the courts were awarded special
protection under the Anglo Saxon Period. They observed formalities of the surety contract.
Bishop became an important person in the administration of justice, as contracts entered in his
presence had to be honored, if not honoured religious sanctions and/or heavy fine followed.
Though one must know that during the Anglo-Saxon period there were no separate ecclesiastical
courts. Only civil courts existed, the role of bishop, who had his support from the state,
increased. He could punish for perjury and breach of contract. Ine 13 provides: “If any one
before a bishop belies his testimony and his „wed,‟ let him make „bōt‟ with CXX. Shillings.”99
2.2.1.4 The Contract of Plighted Faith
It indicates the increasing role of Church in the jurisdiction matters and the court role
in the administration of justice with respect to contracts increased. In these contracts God/
promisor‟s salvation was the surety. “If any one complains of another that he has broken a
promise made with God as a surety, and says that the party complained of has not fulfilled his
promise, let him take an oath to that effect in four churches; and if the defendant wishes to clear
himself let him take an oath in twelve churches.”100The enforcement of such contracts rested on
the party‟s belief to evade any spiritual punishment in case of breach in the contract.
Promisor‟s salvation was of paramount importance which was an effective means to
get the enforcement of the contract done. The pledge of the faith could be done in two ways, one
was by handing over of the faith by the promisor himself to the promisee by way of a hand grasp,
96
Cited in Supra note 94 at 644.
97
Id. at 645.
98
Ibid.
99
Cited in Supra note 95 at 292.
100
61
second was by the promisor depositing his faith to the third person, who could coerce him to
perform his obligation by invoking temporal sanctions. This third person was generally a local
bishop or sheriff, who could enforce the promise.
2.2.1.5 The Pledge Contract101
The coming into vogue of pledge contract could be attributed to the instances in which
the defendant was unable to find a surety for himself. The pledge contract could be said as a
modification of a surety contract. In the contract of pledge, the debtor would provide his property
to the creditor as security for the repayment of loan, which could be made actionable by two set
of separate sureties. When the money is delivered to the debtor, the debtor may provide sureties
for its repayment, at the same time with the transfer of pledge to the creditor, the creditor may
provide for sureties for its return on payment of debt. These two contracts were independent
2.2.1.6 The Delivery-Promise102
It is the modified contract of formal sale and there existed a difference between a
surety contract and the delivery-promise contract, in the former case surety was the promisor, in
the latter case the debtor was the promisor. It was the actual delivery of the property, which
constituted the promise. There was a point in time, during the Anglo Saxon period, in which
every freeman was bound by law to have surety for him. The result was that the mere exchange
of weds created a valid contract without any need to separately furnish a surety for the contract.
The concept may be said to be similar to that of creating of tithing, under which every freeman
was member of a group of ten by law and each of them positioned themselves as a surety for the
defaulter. It created a group responsibility. In the delivery-promise contract, there was a formal
delivery, a formal promise and witnesses but the handing over of the wed stick was omitted. The
delivery of property together with promise was a part of a surety contract and the delivery was
absolutely essential in the contract of delivery-promise contract.
2.2.1.7 The Written Contract
The importance of written contracts can be seen from the contracts relating to land.
For every contract during the Anglo Saxon period, 103 the requirement of witnesses were
indispensable e.g. Sale of cattle etc. The reason for witnesses was that in such cases the
witnesses could outlive the cattle, but that was not the case in case of contracts of land, therefore,
101
Id. at 648.
102
Id. at 652 and Supra note 99 at 293.
103
62
was the requirement of written contracts. Documents constituted the proof for the valid transfer
of land, even during the later Anglo-Saxon period, debts could be proved by way of written
charters. In case of written contracts, the party instead of making an oral promise, handed his
promise to the other party in writing. The written charters substituted the wed ceremony; with
time the charters/documents were given great evidentiary value to prove the valid transfer of
land.104
2.2.1.8 The Earnest Contract
During the earlier Anglo-Saxon period, the party to a contract was required to make
the payment in full, at the time the contract was formed. But this was not case in situations where
seller was to retain the possession of the good and the buyer had to part with total payment in
full; there existed a risk in making a full payment. In case of contract of warranty of quality,
where the party had some doubt about the quality of the good in question, party could withhold
payment. In such situations, to protect the party from the risk of making full payment yet to
preserve the validity of the contract came up the concept of earnest payment. The earnest
payment was by way of handgeld, it was by no means a part payment but did hold some value in
contrast to the wed stick in the wed ceremony, which was completely worthless.105
Thus, the nature of contracts during the Anglo-Saxon period was such that, Surety
contracts during the Anglo-Saxon period were not collateral transactions, as we have today rather
they were principal contracts. Contracts of surety and pledge were treated as forms of contract
and not as collateral transactions. Earnest contract was bilateral unlike contracts of warranty, sale
and loan which were unilateral. Contract of surety and pledge were principal contracts and were
used for sales and loans.
In case of sale,” The parties and the witnesses assembled in the market place or the
public square. The goods, generally horses or cattle, were inspected by the witnesses for brands
or earmarks establishing the seller‟s ownership. The witnesses listened closely to what the parties
said, so if needed, they could later be called upon to swear as to the representations made by each
party.”106The Anglo-Saxon contracts were real in the sense that the title passed immediately on
the completion of payment or formalities.
104
Id.at 289.
105
Id. at 293.
106
Cited in Id. at 280.
63
“The Anglo-Saxons considered betrothal” (Formal Contract) “a real contract of
sale”107, formalized by the wed ceremony and exchange of sureties, therefore the word wedding,
from the Anglo-Saxon wed. Some assert it comes from German “beweddung”. However the
groom could never compel specific performance if the maid refuses to be delivered or the
guardian refused to deliver all what the groom could recover was the amount paid by him plus
one-third. However, the converse was not true.
The researcher has tried to summarize some of the contracts during the Anglo-Saxon
period and how the family did play an important role in the entering in to contracts of the Anglo-
Saxon period, by becoming witnesses or sureties and/even guardians for the party to a contract.
The Anglo-Saxon rule has an important bearing on the English Common Law, which
eventually originated and gradually made a firm foundation to be called as the English Common
Law. With time, one can see the gradual refinement in the judicial structure and how the judge
made law held deep roots within the system.
2.3 NORMAN PERIOD AND ONWARDS – 1066; THE BEGINNING OF ENGLISH
COMMON LAW
The Norman108 Conquest by William the Conqueror109, which marks the end of the
Anglo Saxon rule, could not be strictly taken as the enthronement of the commencement of the
English law, as its rudiments and foundation rested on the preceding laws and customs of the
Anglo Saxon period. No doubt the English law of today bears its import from the succeeding
customs of Normandy, but William the Conqueror, never intended to superseded the preceding
laws in toto.110
107
Id. at 283.
108
Norman, member of those Vikings, or Norsemen, who settled in northern France (of the Frankish
kingdom), together with their descendants. The Normans (“Northmen”) were originally pagan barbarian
pirates from Denmark, Norway, and Iceland who began to make destructive plundering raids on European
coastal settlements in the 8th century. From their settlements in Normandy the adventurous Normans
embarked on several major expansionary campaigns in Europe. The most important of these was the
invasion of England in 1066 by William, duke of Normandy, who became the king of England upon the
success of what is now known as the Norman Conquest. The Editors of Encyclopædia Britannica,
Encyclopædia Britanncia, Norman, People, available at: http://www.britannica.com/topic/Norman-people
(Last Updated July 16, 2012); (last visited on April 26, 2016).
109
William I, byname William the Conqueror or William the Bastard or William of Normandy (b. c.1028 – d.
September 9, 1087), duke of Normandy (as William II) from 1035 and king of England from 1066, one of
the greatest soldiers and rulers of the Middle Ages. Frank Barlow, Encyclopædia Britannica, William I,
King of England, available at: http://www.britannica.com/biography/William-I-king-of-England (Last
Updated December 09, 2008); (last visited on April 26, 2016).
110
Toto is a Latin phrase meaning in all, completely. The Free Dictionary By Farlex, in toto, available at:
http://www.thefreedictionary.com/in+toto (last visited on April 26, 2016).
64
The Norman period reflects the dawn of the English Common law, with its sources as
per Edward Jenks, in his book, “A Short History of English Law from the Earliest Times to the
End of the Year 1911” as “(A) The lex terrae – the Quadripartitus – Leges Henrici Primi –
Leges Willelmi – Leges Edwardi – (B) Roman Law – revival in the eleventh and twelfth
centuries – the Corpus Juris Civillis – Bracton and the Roman Law – (C) Canon Law –
jurisdiction of the Church courts – theory of the „English Canon Law‟ – (D) Charters and similar
documents – (E) Official Practice – (a) „Assises‟ – (b) Records – Domesday – Feet of Fines –
Rolls of the King‟s Court – Inquest of Knights‟ Fees – Inquest of Tenants in Capite – (c) Text-
books – Glanville- Bracton – discovery of Bracton‟s Note Book.”111
Laws during the Anglo-Saxon period were based on customs and these customs were
not uniform as they varied in place and class; these Laws were unmethodical and highly
disintegrated. The old moots also did not maintain any records and there existed no body of
persons who took the responsibility to compile the laws of the Anglo-Saxon period, as was in the
case of Roman Empire, who were called as Juris consults. Various private compilations of the
Anglo-Saxon laws took place during the Norman Period, “Quadriparitus”112, was one of such
compilations. The „English Laws‟ were in a way the compilation of the laws/dooms of Canute
(I), 113 Æthelred, 114 Edmund, 115 Æthelstan, 116 Edward the Elder, 117 Alfred. 118 The Anglo Saxon
111
Supra note 56 at xi.
112
It consisted of four books, first was in Latin and it mentioned the old English laws, second had
contemporary documents, third was a treatise on status and pleading and fourth was a treatise on theft and
its varieties. Id. at 18.
113
Canute (I), also known as Canute the Great (d. November 12, 1035) was the Danish King of England, of
Denmark, and of Norway. Dorothy Whitelock, Encyclopædia Britannica, Canute (I), King of England,
Denmark, and Norway, available at: https://www.britannica.com/biography/Canute-I (Last Updated July
02, 2007); (last visited on September 27, 2016).
114
Ethelred, (b. 968? – d. April 23, 1016) was the king of the English from 978 to 1013. The Editors of
Encyclopædia Britannica, Encyclopædia Britannica, Ethelred the Unready, King of England, available at:
https://www.britannica.com/biography/Ethelred-the-Unready (Last Updated September 27, 2016); (last
visited on September 27, 2016).
115
Edmund I (b.921 – d. May 26, 946), was the king of English from 939 to 946. The Editors of Encyclopædia
Britannica, Encyclopædia Britannica, Edmund I, King of England, available at:
https://www.britannica.com/biography/Edmund-I (Last Updated July 02, 2007); (last visited on September
27, 2016).
116
Athelstan was the first king of all England. He reigned between 925 and 939 AD. BBC, History, Athelstan
(c.895 – 939 AD), available at: http://www.bbc.co.uk/history/historic_figures/athelstan.shtml (last visited
on September 27, 2016).
117
Edward (d. July 17, 924) was the Anglo-Saxon king in England as a ruler of West Saxons from 899 to 924.
The Editors of Encyclopædia Britannica, Encyclopædia Britannica, Edward, Anglo-Saxon King, available
at: https://www.britannica.com/biography/Edward-Anglo-Saxon-king (Last Updated July 02, 2007); (last
visited on September 27, 2016).
65
Laws were written in Old English. Laws of Henry I, Leges Henrici (Primi) was the compilation
of laws in the year 1118,119Laws of Williams the Conqueror, Leges Willelmi (compiled in Latin
and in Norman French), Laws of Edward the Confessor in the year 1070120 in the series was
believed to the most trustworthy amongst the preceding laws. Corpus Juris Civilis of the Roman
law was read with great enthusiasm, the fact which was not appreciated, as a result of which
teaching of Roman law was banned in England in the Year 1234. 121 William the Conqueror
withdrew spiritual pleas from the Courts of Hundred, which resulted in the coming into being of
the hierarchy of Church Courts and they came up with their Corpus Juris Canonici (Canon Law).
William was amongst the first English Kings, who enjoyed great powers; it became evident that
his subjects should seek some formal grants of rights and/ or recognition of claims from the
King. Then came the documents which took the form of „agreements‟ or „concordats‟ between
the King and the subjects as the Constitutions of Clarendon of 1164,122 Provisions of Oxford of
1258, 123 Provisions of Westminster of 1259. 124 Charter during this period meant any written
document; especially if it dealt with the transfer of rights. One of the earliest statutes was the
Statute of Merton of the Year 1236,125 but the true Parliamentary statute did not appear until the
thirteenth century. Then came the Norman officials who left with us a) Assises b) Records c)
Text-Books. Assises were formal regulations, which laid down the general rule of conduct of
official business. e.g. Assise of Clarendon of the year 1166 126 etc. Records, which began to
accumulate in the royal offices, soon after the conquest, were referred as Domesday Book; 127 the
great rolls containing the feet of the fines, records of the King‟s court beginning in 1194.128
Finally the Text-Books written by Glanville, chief justiciar of Henry II, on the procedure of the
118
Alfred was the king of a Saxon kingdom in the southwestern England, called as the king of Wessex from
871 to 899. Dorothy Whitelock, Encyclopædia Britannica, Alfred, King of Wessex, available at:
https://www.britannica.com/biography/Alfred-king-of-Wessex (Last Updated July 28, 1999); (last visited
on September 27, 2016).
119
120
Id. at 19.
121
Id. at 20.
122
Id. at 22
123
Ibid.
124
Ibid.
125
Ibid.
126
Id. at 23
127
The Domesday Book was compiled in the year 1085-86, it is the earliest public record and is a legal
document of the eleventh century. BBC, The Domesday Book, available at:
http://www.bbc.co.uk/history/british/normans/doomsday_01.shtml (last visited on April 26, 2016)
128
66
then new royal tribunals, dated about 1187;129 and the great work on the Laws and Customs of
England, by Henry of Bracton or Bratton, Justice of the Court of King‟s Bench, and Archdeacon
of Barnstaple, in the latter half of the reign of Henry III.
2.4 THE THEORY OF CONTRACT IN NORMAN PERIOD AND ONWARDS
Pherozeshah N. Daruvala in his work “The Doctrine of Consideration treated
historically and comparatively”, states that “Before the Norman Conquest, there was no secular
law of contract. Actual delivery was the only mode of transfer between living persons.
Acceptance of earnest130 money and the giving of faith and pledges were the customary means of
binding a bargain and contracts in writing were not in use….Promises were made by oath and the
Church was powerful to enforce such promises.”131
The Norman, William – The Conqueror was the king of England in 1066. “In the
twelfth and thirteenth centuries the study of Roman law had familiarized Europe with the Roman
conception of contract.”132According to the Roman conception of law, a bare agreement could
not be enforced in the court of law. The common law seem to have borrowed nothing more than
this from the Roman law in terms of contracts and the common law was left to itself in
determining the criteria which could establish, what agreements are contracts and what are not.
Sir Frederick Pollock in his work “Contracts in English laws” reiterates it by saying that “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 purpose of our own history we shall be safe, I think, in confining our
129
Ibid.
130
Among the Franks and Lombards undertakings were guaranteed by confiding one‟s faith, fides facta. This
was a symbolic ceremony by which the creditor received from the debtor a rod or hand-shake; the creditor
passed it on to the surety. Here, the binding force was derived from the ceremony; giving was not the
turning point of the obligation. Supra note 18 at 5. Among one such ceremony was the giving of the valued
object deposited as a guarantee in good faith, as God‟s Penny. All over the Western Europe earnest was
known as God‟s Penny. The earliest procedural needs of the Germans seem to have been for debt. To free
the buyer from the risk of making actual payment, while yet preserving the efficacy of the real contract of
sale, the German law introduced, instead of the payment, the earnest money (hand geld), the equivalent of
the arrha of the Lombard Law, with the effect of concluding the contract. In the law Merchant God‟s
penny is sufficient to make a binding contract of sale. The arrha was comparatively worthless and was in
fact payment; but was the means of judicially binding the agreement made by the parties and a real right
arose from it. Supra note 18 at 6. According to the laws of Althelr 1, 3 “And let no man either buy or
exchange unless he has borch and witnesses. Cited in Supra note 18 at 6.
131
Id. at 1.
132
Cited in W.S. Holdsworth, A History of English Law 412 (Methuen& Co. Ltd., London, 1923), Vol. 3
available at:
https://ia802609.us.archive.org/26/items/historyofengl3rd03holduoft/historyofengl3rd03holduoft.pdf (last
67
attention to English authorities………… and we may begin with Glanville133 accordingly.”134 Sir
E. Coke says: “Our Common Laws are aptly called laws of England because they are
appropriated to this kingdom of England and have no dependency upon any foreign law
whatever, nor upon the Civil or Canon Law other than in cases allowed by the laws of
England.”135
Agreeing to the words of W.S. Holdsworth in his work “A History of English Law”
volume 3 that, “The theory of English law of contract is contained in the doctrine of
consideration.”136 In the coming pages, we will see how the doctrine of consideration became an
indispensable element in the formation of contract, the absence of which rendered the agreement
void and also, what factors lead to the evolving of the doctrine of consideration as one of the
essential elements of contract in the English common law.
During the time of Normans, personal actions of several different kinds existed with
respect to contracts. During the time of Glanville, we do find references of roman phraseology
like mutuum, depositum etc., but law relating to them were not similar to that of Roman law, as
in the case of sale, the contract was real under the English law and not consensual as was the
case under Roman law. Various transactions during the time of Glanville created debt; Glanville
was chief justice in the reign of Henry II, who was the author of a treatise on the Laws and
Customs of England. The date of the book is between 1180-1190 A.D.137 Its Book X deals with
contracts, with Roman influence and roman terminologies. There is no classification of contracts
in his book.
In Glanville‟s treatise we find mention of two permanent traits (1) remedy is
dependent on writ, a point emphasized by Bracton. (2) The practice of quoting decided cases by
way of precedent.”138. “By English Law, contracts could only be sued upon in Curia Regis, if
133
Ranulf de Glanville, Glanville also spelled Glanvil, or Glanvill d. 1190?, justiciar or chief minister of
England (1180-1189) under King Henry II. The Editors of Encyclopaedia Britannica, Encyclopaedia
Britannica, Ranulf de Glanville, English politician and legal scholar, available at:
https://www.britannica.com/biography/Ranulf-de-Glanville (Last Updated July 20, 1998); (last visited on
December 25, 2015).
134
135
136
137
138
Id. at 9.
68
either party performed or embodied them in a sealed writing. All other stipulationes 139
conventionales were called by Bracton nuda pacta.”140 This term (nuda pacta) underwent a great
change of meaning. At Roman law, it had been an informal agreement which did not come
within some one of the privileged classes which were actionable or which had no causa or mark.
Under the English law, it was an agreement under which there was no assigning of one of the
recognized methods of proof in King‟s Court; viz., (witnesses, writing or duel); nuda pacta was
not an agreement under the Roman law.
The great peculiarity of English Law in Bracton‟s time was writs. The influence of the
Roman concept of contract appears to have a stronger foothold during the time of Bracton. There
has been a rapid increase in the number of writs (royal command) by which actions could be
pursued in the court of law. As a matter of historical fact, the simple contract and the ordinary
tort sprang from the same stock. The only remedy of general nature for contract was the action of
debt. By the time of Bracton, it had specialized into two forms, Writ of Debt and Writ of
Detinue. The former was for the recovery of a fixed sum of money and the latter was applicable
in case of specific chattel. The writ of debt and writ of covenant (absent during the Glanville‟s
period) were quite prevalent during Bracton‟s time. These two personal actions of covenant and
debt may be considered to have exerted some influence, if not profound, on the early
development of the law of contract.
The personal action of debt “was the appropriate action by which many of the
commonest classes of contracts could be enforced”141 A condition which became essential in the
enforcing of contracts was the existence of “quid pro quo”; early in 1339142 we find reference of
quid pro quo. In the year book of this time is the reference of the case where the writ of debt is
brought, and it is contended by the plaintiff that he was hired as an attorney for ten years, to be
paid 20s per year and the amount is in arrears. Court held that his services constituted quid pro
quo. Quid pro quo became a settled law143 during the reign of Henry VI. One of the cases during
his reign is a good illustration of the concept of quid pro quo, an action of debt was brought, in
which the defendant had promised to pay the plaintiff a sum of money if the plaintiff married the
139
By Civil Law of Rome a verbal promise was binding if made with prescribed form. Such an obligation was
called stipulation.
140
141
142
Ibid.
143
Id. at 422.
69
defendant‟s daughter. The plaintiff married the defendant‟s daughter and claimed for money
from the defendant and the defendant refused for payment. The plaintiff moved with the action
of debt and the question in the court was whether, the marrying with the defendant‟s daughter
constituted sufficient quid pro quo. “The general idea of quid pro quo was the benefit to the
defendant; and anything of value which the plaintiff had conferred upon the defendant was quid
pro quo.”144 The courts were divergent in comprehending as to what constituted “a thing of
value”. Some took the narrow view, as in the previous case which stated that marrying with the
defendant‟s daughter, did not constitute quid pro quo. But there have been cases, in which the
courts were clear to take the marrying with the defendant‟s daughter as sufficient quid pro quo.
“…..the conception of quid pro quo had been extended from the notion of doing something for or
giving a physical something to the defendant, to the doing something for or giving something to
another at his request, which could be regarded as a benefit to him.”145
The action of debt had its own limitations; the action of debt could only be brought in
cases of some specified sum, if the sum was not specified the action of debt could not be
brought. In case wager of law 146 was available, the action could not be brought against the
representatives of the deceased. In case of unliquidated damages, the contract could only be
enforced, if the agreement was made under seal and not otherwise. As the time progressed, forms
of actions became very rigid under the common law and the forms of actions based on writs
increased.
The personal action of covenant was based on the instrument, which had a specific
form, which meant that it [the instrument] should be in writing and properly sealed. It was this
“form” of the instrument that imparted enforceability to the instrument. It was this seal which
gave irrefutable evidence to the fact, that the person whose seal was present was bound. It is said
that originally, the writ of covenant was restricted to agreements concerning land or lease. In the
year 1566147 seal meant consideration.
144
Ibid.
145
Ibid.
146
Wager of law, was a procedure for defending oneself that could be used in a trial, the defendant was
permitted to make a statement before the tribunal, and swear that it was true and present one or more
individuals who swore that they believed that he had told the truth. The Free Dictionary By Farlex, Wager
of Law, available at: http://legal-dictionary.thefreedictionary.com/wager+of+law (last visited on March 30,
2016).
147
70
During the fifteenth century, there was certain state of facts which could be either
regarded as torts or as breaches of contract, for such state of facts there was always a temptation
to bring it under the action in torts rather than breaches of contract. During the time of Edward
III‟s reign such cases became numerous. “.. it is in these cases, which were treated as firstly
purely as cases of tort, that we can gradually trace the development of our modern theory of
contract.”148
There were two kinds of action which were brought under such cases, the “action of
trespass” and the action of “deceit on the case”. W.S. Holdsworth in his “History of English
Law” volume 3, is of the opinion that, “it is little difficult to define the exact boundaries of
trespass and deceit on the case.” 149 However, he quotes Sir John Salmond from “Essays in
Jurisprudence” on page 208, that “Trespass was applicable only to the cases of damage to the
person or property of the plaintiff. But deceit included all cases in which the plaintiff had
suffered injury by acting in reliance on the defendant‟s promise. ”150
The action of trespass and deceit on the case which were brought under such cases
came to be known as the action of Assumpsit. According to W.T. Barbour, in his work “The
History of Contract in Early English Equity” volume IV, he says that “Assumpsit made its
appearance about the middle of the fourteenth century” 151 , till then there was no theory of
consideration.
Previous to the Assumpsit, there was no action on the case in which one does find
mention of the theory of contract. It was post the century long struggle that led to the
development of Assumpsit, in the beginning of the sixteenth century. Assumpsit was an action in
law, in which the parol contracts could be enforced in the court of law. “Some time in the
sixteenth century another principle obtained a foothold. Men begin to speak of consideration, of
promises as made in consideration of some act or forbearance. The early history of this doctrine
in wrapped in obscurity.”152 However, W.T. Barbour further, states “But we do know that the
first use of the word at common law was in the action of Assumpsit, and that ultimately in
148
Id. at 429.
149
Refer footnote 3 in Ibid.
150
Ibid.
151
W.T. Barbour, The History of Contract in Early English Equity 54 (Clarendon Press, Oxford, 1914),
available at: https://ia600500.us.archive.org/30/items/historyofcontrac04barb/historyofcontrac04barb.pdf
(last visited on March 30, 2016).
152
Id. at 59.
71
became settled that no promise was enforceable unless it were made upon a valid
consideration.”153
The action of Assumpsit was wider as it was used in the action in tort and also came to
be used in other branches of cases in which contract (express and implied), quasi contracts, could
be enforced. W.S. Holdsworth in his work “History of English Law” states the chronology in
which the conversion of the action of assumpsit from the delictual remedy to the contractual
remedy could be stated. He divides the stages as follows:
“(1) The original application of the action to remedy misfeasances in breach of an
undertaking; (2) its extension to remedy certain kinds of non-feasance in breach of an
undertaking; (3) its absorption of the greater part of the sphere of Debt, and its extension to
remedy the breach of executory contracts; (4) its extension to remedy the breach of implied
contracts.”154
2.4.1 The Original Application of the Action to Remedy Misfeasances in Breach of an
Undertaking
By the end of fourteenth century, there have been cases in which the liability was
enforced by way of trespass or deceit called the action of Assumpsit; the ground on which the
action was based was tort. Under the action of trespass, one party had undertaken to fulfill a duty
and in fulfilling that duty the party who has undertaken to perform the duty has caused damage
to the other party. Number of cases could be stated under the said cause of action, for e.g. A
plaintiff has asked the defendant to carry his cattle over the river and the defendant has over
loaded his boat leading to the death of the cattle, in such case, the action of trespass would lie. 155
Other instance comes from the year 1370156 in which the duty undertaken by the defendant was
to cure the horse, but due to negligence of the defendant the horse died, in such case also, the
action of trespass lie. Since the action was in tort, the remedy of trespass on the case was
appropriate. The action of deceit would lie when a person warranted a particular thing sold and
the other party was given other than the thing warranted, the action of deceit would lie for the
damage to the plaintiff. It was wide enough to cover cases in which the character of the act was
fraudulent. The case could be one in which the party hired a counsel for the buying of the manor
153
Id. at 60.
154
155
Id. at 430.
156
Ibid.
72
in return for the payment of an agreed sum. But, the counsel colluded with another and betrayed
him by sharing the secrets of his initial employer.157 The court held that it was a case of deceit. In
both the case of action of trespass or deceit, the ground was tort. During the time of Henry IV‟s
reign, there existed a distinction between an undertaking taken by the party to do an act and the
act was done negligently causing damage to the plaintiff; on the other hand the party undertaking
to do an act but did not do it, thereby caused damage to the plaintiff. 158 What was remedy
available in both the case? In the former case the remedy was action of trespass and in the latter
case there was no cause of action as there was no liability, as the damage was caused due to non-
feasance. The action of covenant would lie in such case in case of deed. In case there was no
deed, no action of covenant would lie.
2.4.2 The Extension of the Action to Remedy -- Certain Kinds of Non-Feasance in Breach
of an Undertaking
Judges, during the reign of Henry VI, were much inclined to hold mere non-feasance a
ground of action in trespass or a deceit on the case.159 Year 1425160gives an illustration of a case,
where a mere non-failure to perform an agreement, was a valid ground for action for trespass.
The judges held “that the breach of an undertaking, whether by misfeasance or by non-feasance,
was actionable, and that the gist of the action was not a tort, but the damage flowing from the
breach of the undertaking”161.
In case of sale and purchase of chattels, when the party bought the chattels from the
seller and the seller was duly paid for the chattel, but the seller did not part with the chattels, the
action of detinue would lie. This was not the situation in case of sale and purchase of land, in
case the buyer bought the land and paid the money to the seller, but the seller did not part with
the land, there was no remedy available to the buyer. But in both the formerly mentioned cases,
if the buyer did not pay the sum to the seller the action of debt would lie. Therefore, the
development which took place was that, in cases of sale and purchase of land, where the money
was duly paid to the seller but the land was not conveyed to the buyer, the action of deceit was
allowed. But one does find reference of an authority in the Year Book 21, 22 Ed. I. (R.S.) 598-
600 for an action of debt in case the buyer has paid the money for the land and the land has not
157
Id. at 431.
158
Id. at 433.
159
Id.at 434.
160
Ibid.
161
Ibid.
73
been conveyed to him by the seller. “Metingham – If a covenant be made between Robert de
Hertford and me that he shall enfeoff me of a carucate of land and put me in seisin at Easter in
consideration of thirty marks; and Easter comes and he does nothing for me; in that case I may
choose whether I will demand the money by a writ of Debt, or demand by writ of Covenant that
he performs his covenant with me in respect of the land.”162 It is important to understand that, in
the case where the seller of land sued the buyer for the non-payment of the sale amount, by an
action of debt, the action was brought “not because any contract was broken, but because the
grant of the land was quid pro quo for the grant of the money.”163
In the case of sale and purchase of the chattels, it was held that “the grant of the price
was the quid pro quo for the grant of the right to possess chattels.”164 Further, “no action of debt
lay for the price under a mere agreement to sell land, for there was no quid pro quo.”165 Latest
development in the doctrine of quid pro quo during the end of the medieval period was that the
detriment suffered by the plaintiff on the faith of the promise was held to be a valid reason for
the success on the action on the case. One may find recognition of this development in the reign
of Henry VIII.166 The case runs as follows – A says to B to supply goods to C and if C doesn‟t
pay for the goods, I will pay for the goods. In this case the action on the case was held valid on
the ground that change of stance by one party on the assurance of the other party is a valid
ground for action. “…a benefit conferred on a third person at the defendant‟s request could be
regarded as a quid pro quo.”167 But there existed a difference between the quid pro quo in the
action of debt and quid pro quo in the action of assumpsit. In the action of debt; the matter was
determined on the basis of the benefit to the promisor; but in the action of assumpsit, the matter
was determined from the point of view of the detriment to the promisee. “To sue in debt it must
be shown that the plaintiff had given a quid pro quo; on the other hand, to sue in assumpsit it
must be shown that the plaintiff had, as a result of the agreement, undertaken to bear some
charge.”168
2.4.3 The Absorption by the Action of the Greater Part of the Sphere of Debt, And Its
Extension to Remedy the Breach of Executory Contracts
162
Refer footnote 2 in Id. at 437.
163
Id. at 437.
164
Id. at 438.
165
Ibid.
166
Id. at 440.
167
Ibid.
168
Id. at 441.
74
What was the status of the executory contract, whether they were enforceable or not?
Till now we have discussed cases in which either some money was paid or some act was done in
pursuance of the contract. Now, we come to executory contracts; assumpsit was fundamental in
enforcing the executory contracts. The action of assumpsit would lie in a situation where the
party under an agreement was to pay to the other party in return for the agreement to act. The
basis of such action was not the actual doing or performance of the agreement on both sides,
rather the mutual promises between the parties by way of an agreement. If this became possible,
assumpsit ushered a new era, in which executory contracts could be enforced. In the middle of
the sixteenth century the courts started to allow the action of assumpsit in case of a debt
provided, after the giving of the debt, the party made an expressed promise to pay. The basis of
the action of assumpsit was the undertaking by way of an expressed promise to pay the debt.
Gradually, the action of assumpsit was allowed in cases of debt, where the subsequent
expressed promise to pay was not there. Such action originated in the King‟s Bench court,
though the action of debt by way of original writ was outside the purview of its Jurisdiction, but
the assumpsit which was the action of trespass on the case was very much with their jurisdiction.
““In 1573, in the case of Edwards v. Burre, Wray, J.; said that it was the custom of the King‟s
Bench to treat a debt as “an assumption in law”” 169 But there existed a conflict of opinion
between the King‟s Bench and the Court of Exchequer Chamber. As late as 1601,170 the Court of
Exchequer chamber was adamant in reversing the decision of the King‟s Bench. But it was in
1602171 in Slade’s Case that the view of the King‟s Bench was finally upheld. The result was the
disappearance of the remedy of debt in case of simple contract and its place was taken by
indebitatus assumpsit. The action of indebitatus assumpsit had its advantages over the action of
debt because the action of indebitatus assumpsit overcame the limitations of the action of debt
viz. the action could be brought against the representative of a deceased person, the same
preciseness of the pleading was not required etc.
Initially for the action of assumpsit, it was the undertaking which was essential under
which the money was paid. The non-fulfillment of the undertaking was the reason to bring an
action of assumpsit or in case anyone changed his position on the faith of the undertaking and
caused detriment to the party, in both the situations the action of assumpsit lay. Lately, it was the
169
Id. at. 443.
170
Ibid.
171
Id. at 444.
75
promise that was fulfilled, but the money was not paid and debt was incurred, it is the promise to
pay the debt which was actionable.
In case of indebitatus assumpsit, the pivot around which the action revolved was the
idea of promise. One the earliest cases to state that executory contracts were enforceable by
assumpsit could be traced from the case Pecke v. Redman (1555).172 In Narwood v. Read (1558)
it was stated that “every contract executory is an assumpsit in itself.”173 The principle that mutual
undertakings/ mutual assumpsit in an executory contract would give rise to mutual action of
assumpsit was recognized in 1589 174 in Strangborough and Warner’s Case. Thus, when one
party agreed to pay money or deliver something to other on a future date and the other in
consideration agreed to pay at such day, the nature of the agreement was executory, in such
executory contracts, both the parties had an action of debt or an action of assumpsit, but it must
be seen that the promises were instant promises. If both the promises were not made at the same
instance they would both be nuda pacta175 (Nichols v. Raynberd (1615) Hob. 88). By the time
1696,176 there developed a difference between the special or express assumpsit and indebitatus
assumpsit, former lay on the executory contracts but the latter lay only when debt would lie.
2.4.4 The Extension of the Action to Remedy the Breach of Implied Contracts
Hardships were created by the view held by the court of Common Pleas, that an action
of indebitatus assumpsit would only lie in case where there was an express promise to pay, if
there was no express promise to pay, one could not avail the remedy of the indebitatus
assumpsit. In case where the person had lodged at the inn and had not paid for the services of the
inn keeper or had refused to pay, the inn –keeper was without remedy, because the action of
indebitatus assumpsit could only be brought where there was an express promise to pay. It was
in the year 1610 in Warbrooke v. Griffin “it was recognized that the innkeeper could sue for the
value of the entertainment which he had provide;”177 this case introduced the idea that when the
promise to pay was implied, in case of non-payment, the action of assumpsit lay.
In the Middle Ages, the ground of action on the contract for breach of any duty was
torts and not contracts. The party was held liable in case of misfeasance as a breach of an
172
Id.at 445.
173
Ibid.
174
Ibid.
175
Ibid.
176
Id. at 446.
177
Id. at 447.
76
undertaking in an action based on tort. But gradually, breach in an undertaking had its base in the
contract which was enforced by way of action of assumpsit. The party was held liable on the
ground of a breach of a contract and not tort, this can be said that the society was in a process of
a gradual transition from status to contract.
During the fifteenth century, in a case where the party was guilty of negligent
misfeasance leading to breach in an undertaking, the action based on tort would lay. By the
sixteenth century, special assumpsit would lie in such case, however, towards the end of the
sixteenth century, the party to the contract would fail, if he was unable to prove consideration; as
has been said in Howlet v. Osbourn (1595) Cro. Eliza. 380 “But the plaintiffs in these actions
failed because they were unable to prove consideration.”178 With this the judges proceeded to
determine the ambit of consideration, and what could be taken as consideration in the eyes of
law. The promise to deliver goods on the receipt of payment was held to constitute good
consideration to charge the party, in case of default. In the other instance where the party was
liable in an action of account and was freed from the liability by bringing an action of assumpsit
was held to be sufficient consideration. Here, we see that the actions which were initially based
on tort were gradually taking the form of becoming actions in contract. The parties were free to
waive the action in tort and sue in contract. It is stated by W.S. Holdsworth in his work “A
History of English Law” that “…. extension of a sphere of assumpsit brings us close to the
border line of the sphere of contract”179 The action of assumpsit assumed a contractual character.
Damages came to be assessed on the contractual principle of compensation rather than the
delictual principle of compensation based on tort. “The special condition which must be present
before the action could be brought-conditions summed up in the word “consideration.””180“In all
its essential characteristics assumpsit was established as an independent contractual action by the
end of the first decade of the seventeenth century”181
W.S. Holdsworth in his book “The History of English Law” volume 3, is of the
opinion that the knowledge of the history of assumpsit in relation to the older personal actions is
necessary to have an understanding of the many doctrines of the substantive law of contract.182
He says that the forms of actions which became prevalent during the end of the sixteenth
178
Id. at 449.
179
Id .at 450.
180
Id. at 452.
181
Id. at 453.
182
Ibid.
77
century, in which various “agreements could be enforced if the plaintiff could show that he had
made a counter-promise, or had incurred a detriment on the faith of the defendant‟s promise.”183,
though the use of the word “consideration” has not been applied to such contracts till that date.
“But the roots of this …..doctrine itself [are]not far off. When it appears we shall be able to say
that by means of a series of developments in the law of actions the common law has won its way
to a wholly original test of the enforceability of agreements – the test of consideration.”184
During the medieval period, one does find the existence of the forms of actions –
account, covenant, debt and assumpsit, which have relation to enforcement of contracts but to
say that there existed any general theory of contract would not be right. One of the reasons for
the increase in the forms of action and the coming in to being of the action of assumpsit, with its
gradual expansion could be attributed to the competition between the various common law courts
and chancery courts. The action of assumpsit proved to be advantageous in comparison to other
actions as it could give more freedom in terms of technical restrictions.
The lawyers of the sixteenth century very clearly recognized that the base of a contract
was agreement and the essence of an agreement was consensus-ad-idem. In the year 1551, the
agreement was taken to mean “union, collection, copulation, and conjunction of two or more
minds in anything done or to be done.”185In 1553, it was said by the courts that “The agreement
of the minds of the parties is the only thing the law respects in contracts”186
This development in ideas with respect to agreements and contracts could be attributed
to various forms of actions prevalent during the period, more importantly the action of debt and
the action of assumpsit. At the time of the form of action of debt, which was an old action, the
ideas of what agreements need to be enforced and what not, had not come to the forefront. As the
law was at the lower pedestal on the continuum of its development, at the time of action of debt,
what was important for the forms of action was to know and understand that an agreement as
such should give rise to an action; even this idea was hardly adaptable. With the action of
assumpsit as the form of action, the idea that agreements should be enforceable and should give
rise to an action held a prominent place. As this idea, the agreements should be enforceable, held
183
Ibid.
184
Ibid.
185
Cited in W.S. Holdsworth, A History of English Law 1 (Methuen& Co. Ltd., London, 1923), Vol. 8,
available at:
https://ia600207.us.archive.org/26/items/historyofenglish08holduoft/historyofenglish08holduoft.pdf (last
186
Ibid.
78
roots, the next step which came to the forefront was the problem of determining which
agreements are enforceable and which are not. It eventually realized the need to discovering
“that something”, which could distinguish between agreements enforceable at law and
agreements not enforceable at law. As the courts very well understood, that despite the
agreement fulfilled all the essential conditions (above mentioned), there was a need to have
something more, which could make the agreement enforceable. Since all agreements could not
be made enforceable at law. There came to limelight the need to demarcate between contracts
and mere pacts/ agreements. Both the common law courts and the chancery courts were badly
confronted with this problem. Their contribution can be traced in the history of doctrine of
consideration which solved the problem of contract and mere pacts.
W.S. Holdsworth, in his “A History of English Law” volume 8 sates “the main
essential and ultimate contents of that doctrine are wholly derived from the rules which regulated
the competence of the common law actions of debt and assumpsit, and more especially from the
rules developed by the successive expansion of the latter action.”187 It became evident, that there
was a need to determine what agreements became contracts and what agreements were mere
pacts and were not enforceable in the eyes of law. Both the common law courts and the chancery
courts made their respective contribution in the evolution of the concept/ doctrine of
consideration.
The essential elements of the doctrine of consideration had sprung up from procedural
requirement of the action of assumpsit, what was difficult was not the fact that the essential
elements had sprung from the procedural requirement of the action of assumpsit, but their
gradual incorporation in to the substantive law. The idea of consideration during the period of its
infancy faced influences from the chancery courts, common law courts, and continental system
of law also. As has been stated already, the only contribution Roman law has supposed to make
to the English law is the borrowing of the idea that a nude pact was not enforceable in the court
of law. “This idea was adapted to the common law of the thirteenth century, and took shape in
the principle that only those agreements were actionable which could be brought within the
competence of some one of the older personal actions”188 The older personal actions gradually
moved towards enforcing of certain kinds of agreements, therefore it became pertinent to find
187
Id. at 2.
188
Id. at 3.
79
“what was that thing”, which imparted enforceability to the contract. The search for some word
or term or expression which could be used to differentiate between agreements enforceable at
law and not enforceable at law headed forward.
If we look for the search of the term used, if any, in the older personal law actions, we
come to the action of debt, where the plaintiff could not bring an action in the court of law unless
he had given something for the promise. And the term used for that “something” was ““cause” or
“occasion.”” 189 As we move ahead in times, towards the fifteenth century, the use of more
precise term or word or expression was seen to be used, which was “quid pro quo” in the action
of debt “….and that in consequence, it had begun to acquire almost a technical meaning” 190. The
problem with the term “quid pro quo” was that it exceedingly started to be associated with the
action of debt only, ““some more general word was needed to express the act or other
circumstances which had led up to or was the motive or reason for a given transaction. It is clear
from the Year Books of the fifteenth and early sixteenth century that word “consideration” was
used for this purpose.””191 Since the usage was as a general word, the term “consideration” had
not acquired a technical meaning since then. With the expansion of the action of assumpsit, it
began to cover within its ambit, cases in which the plaintiff had acted on the faith of the
defendant and had incurred “charge” the remedy was made available in this case of nonfeasance
which lead to the breach of agreement, by way of an action of assumpsit. It was only with the
expansion of the action of assumpsit, that “the need for some compendious word to express the
incurring of this charge, which rendered the agreement actionable began to be strongly felt.”192
Since the term “quid pro quo” increasing became associable with the action of debt, the term
“consideration” gained advantage, more so because it has not acquired any technical meaning as
such.
In the words of W.S. Holdsworth in his book “A History of English Law” volume 8,
““the expression “consideration” was a more convenient word, both because it had a far more
general significance, and because, within the sphere of the common law jurisdictions, it had not
yet become a technical term.””193 These were the developments and contribution made by the
common law courts. At the level of the chancery courts, it became equally necessary for these
189
Id. at 4.
190
Ibid.
191
Ibid.
192
Ibid.
193
Ibid.
80
courts to chalk out rules for the purpose of jurisdiction of the contract matters. It was important
for these courts to look for reasons which would make an agreement enforceable at law and the
absence of which would render the agreement unenforceable. To resolve the problem the
chancery courts opted for the canonist theory of “causa”. However, this theory of “causa” put
forward by the chancery courts was not appreciated by the English Courts, rather it was rejected
on the grounds of being too wide, the chancery courts were unable to have their foothold in the
sphere of contract, and the theory given by the common law courts became the theory of contract
in the English law. The term “consideration” did seem to have gained a foothold on matters of
uses in the equity courts, ““valuable” and “good” consideration, came to be technical terms of
permanent importance in the law of conveyancing””194 in terms of matters dealt by the equity
courts. These use of the terms “valuable” and “good” seem to have some influence, if not
appreciable, in terms of development of the doctrine of consideration, as it evolved on the lines
of the common law courts. One may here clearly see, how both the courts – chancery and
common law courts had made a contribution in the evolution of the doctrine of consideration.
Thus, one may say that the courts (common law and chancery courts) did become familiar with
the term “consideration” by the earlier half of the sixteenth century, in relation to contracts but
the terms was used in the loose sense of the term and had not attained a technical meaning by
that time. During this period one also find that there existed other expressions also which were
used in competition of the word “consideration”. As Mr. Street puts it “St. Germain in the Doctor
and Student uses the following expressions : “Recompence (four times), cause (three times), a
certain consideration (twice), consideration of worldly profit (once), cause in the sense of a
desire to maintain the cause of learning or service of God (once), quid pro quo (once), goods or
some other profit (once), thing assigned for a promise (once), new charge (once), charge by
reason of the promise (once).”195
One may say that the term consideration which was a general term during that time,
without any technical meaning has been compared with expression like “quid pro quo” which
was more technical in nature during that period. In 1566, Sharington v. Strottan, Plwden 300 196,
in relation to enforceability of contract by way of action of debt or action of assumpsit, the term
“consideration” was used “in a semi-popular sense to mean the circumstances which will make
194
Id. at 5.
195
Ibid.
196
Id. at 6.
81
the contract enforceable”197. In a case in which the party is the acquaintance of the other or is in
relation to other or is a familiar friend of other, and the party promises to pay other some
specified amount on ground of the familiarity, acquaintance, or relation, such is a nude or barren
contract and cannot be enforced in the court of law (ex nudo pacto no oritur actio – no cause of
action lie in case of nude pact) the reason being there was no sufficient cause for the payment,
nothing is done or given on part of the familiar/acquainted/related person and the person so
familiar/acquainted/related would remain so afterwards as before, nothing new is done, which
forms the essential for the enforcement of a contract, it is a pact without consideration, thus not
enforceable.
The action of debt came to be used in case of contracts also; it was during the end of
the sixteenth century that the action of assumpsit came to be used as an alternative to such action
of debt and the action of assumpsit became a remedy in case of purely executory contracts. In
Joscelin v. Shelton (1557) 3 Leo. 4, “where “the plaintiff declared that the defendant, in
consideration that the son of the plaintiff would marry the daughter of the defendant, assumed
and promised to pay to him etc.,” is perhaps the earliest instance of the use of the term in this
sense”198Towards the end of the sixteenth century, in Calthorpe‟s Case (1574)199 Dyer 334 b , the
term consideration is used in a general sense to mean “a cause or meritorious occasion requiring
a mutual recompense in fact or in law.”200
Ames, Lectures 147 n.I, is of the view that the word consideration is not to be found in
the reports of half dozen cases of the reigns of Henry VIII and Edward VI201 but it was in the
year 1587, when in Whorwood v. Gybbons (1587) Golds. 48, the court stated ““it is a common
course in actions upon the case against him by whom the debt is due, to declare without any
words in consideration,” testifies at once to the growing habit of using these words, and to the
fact that the usage was not quite settled.””202 “it was fairly well settled, by 1585, for Periam, J.,
in Sidenham and Worlington‟s Case 2 Leo. at p.225, “in an action upon the case upon a promise,
197
Ibid.
198
199
Id. at 6.
200
Ibid.
201
Supra note 198.
202
Ibid.
82
the declaration is laid, that the defendant for and in consideration of £ 20 to him paid,
(posteascil.) that is to say, at a day after, super se assumpsit.”203
Thus, one may say that during the end of the sixteenth century, the action of assumpsit
had become the chief contractual actions of the common law and it was towards the later end of
the sixteenth century that the courts started to use the term “consideration”, relying the
enforceability of a contract by way of action of assumpsit on consideration, this is how the
promise became enforceable by the action of assumpsit. By this time, it may be said the word
“consideration” “then acquired a technical meaning of the facts or circumstances which must be
proved in order to make a promise enforceable by this action”204.
Manwood and Burton‟s Case (1587) 2 Leo. 203205is one of the good illustrations to
this fact; Manwood, a chief baron was the party in the given case, in his reply to the writ of error,
he had used the expression “consideration” throughout in his reply in the sense that consideration
must be proved in order to make a promise enforceable. In his reply he classifies consideration
under three heads, he states “There are three manner of considerations upon which an assumpsit
may be grounded: (1) a debt precedent; (2) when he to whom such a promise is made is
damnified by doing anything, or spends his labour at the instance of the promiser, although no
benefit cometh to the promisor… (3) or there is a present consideration”206
“It is clear that the second of these considerations originates in the extension of the
action of assumpsit to cover certain kind of nonfeasance in breach of an undertaking; the first
originates in the extension of the action to enforce a promise to pay an existing debt (indebitatus
assumpsit); and that the third originates in the extension of the action to enforce a promise which
is given in return for a promise.”207
Thus the expression “consideration” had a technical meaning in terms of contracts to
be enforced by way of action of assumpsit; it became a condition precedent to avail an action of
assumpsit to enforce a contract. The consideration became the condition precedent which
bestowed validity to the contract for the action of assumpsit, that is to say consideration imparted
competence to the parties, as a condition precedent, to claim remedy in an action of assumpsit as
valid contract. During the sixteenth and seventeenth centuries, the action of assumpsit had its
203
Ibid.
204
Id. at 6.
205
Id. at 7.
206
Ibid.
207
Ibid.
83
similarities in the action of debt. A party to succeed in an action of debt had to prove the
existence of “quid pro quo”. Therefore, one may as a corollary say that the expression “quid pro
quo” did exert some permanent influence in the development of the concept of “consideration” in
the action of assumpsit and in the law of contract. Similarly, as we have already seen that the
courts of chancery along with the common law courts determined cases based on contracts and
the courts of chancery did come up with expressions like “valuable” and “good”, such
developments in the courts of chancery were equally responsible for exerting some influence of
permanent nature in the development of the expression “consideration” in the law of contract.
The development of the expressions “quid pro quo” and “consideration” in an action of debt and
action of assumpsit actually affected the competence of the parties to get the contract enforced.
As we have already seen that it was during the later years of Edward III‟s reign, that
the developments which took place in the domain of cases of torts, were the areas from which
one can trace the development of the modern theory of contract. The action of assumpsit was
made available in the case of tort relating to action of trespass or deceit on the case but the action
of assumpsit did not just confine itself to the areas of tort, without ceasing to be brought in an
action of tort, it developed other branches also viz. enforcing of contracts either expressed or
implied or enforcing quasi-contracts. For bringing successful form of this action it was necessary
to fulfill certain conditions, before it could be regarded as a law of contract.
The action of assumpsit which was initially a delictual remedy gradually moved
towards being a chief contractual common law remedy. Originally the action of assumpsit was
made available in the fourteenth century to establish a liability in tort, which arose due to the
fulfilling of the duty, which was undertaken (assumpsit) in such a manner that caused damage to
the party and the undertaking of the duty was called as the assumpsit in the action of assumpsit.
The liability was enforced by way of a special variety of trespass or deceit in case which came to
be known as the action of assumpsit. The gist or the ground of action in such case was purely tort
and not contract and the remedy was based on misfeasances, and not on non-feasance, which
means that the action of assumpsit was made available in case in which the duty undertaken was
performed but the performance was in a manner which caused damage to the party. The action of
assumpsit was not made available in case where the damage was caused due to non-performance
of the duty undertaken and this distinction was clearly seen in the Henry IV‟s reign.
84
The extension of the action to remedy of non-feasance in breach of an undertaking was
the next step in the development of the action of assumpsit. There were instances in the year
1425208 and 1436209 when the judges during the reign of Henry IV were inclined towards holding
that mere non-feasance could be a ground of action by way of action of trespass and deceit on the
case. The reason of this inclination was obvious that the judges in the common law courts knew
that they were without remedy in such cases of executory contracts without deed and that the
parties may approach the chancellor/courts of chancery if they found no remedy with the
common law courts. This inclination towards such principle was taken to be very large, in the
words of Martin “that one shall have trespass for any breach of covenant in the world” 210 (In the
words of Ames, “it is, important in all these cases to note that “covenant” was often used in the
sense of agreement” 211 ). There was felt a need to differentiate between executory contracts
(without deed) which could be enforced and those which could not be enforced. There was a
need for a test which could differentiate between agreements the non-performance of which
would give a ground of action and the agreements the non-performance of which would not give
a ground of action. The courts came up with distinctions that if the damage was caused solely by
the breach of the agreement, no action would lie, but if the plaintiff had changed his position on
the faith of the agreement and due to this change of position which was induced by the
agreement, the plaintiff suffered damage, then the action would lie. One of the earliest cases on
this matter in the common law courts was in the year 1442 212. One of the earliest cases in the
courts of chancery in which a relief was given to person who had suffered a detriment by action
on the faith of the promise was in the year between 1377 and 1390 – Wheler v. Huchynden, Cal.
Ch. ii213.
Further, during this period in case of sale of chattels, if the party contracted to buy
specific chattels at a fixed price and the plaintiff paid the money, he had a remedy of bringing an
action of detinue of the chattels. In case, the chattels were handed over and no payment was
made, the party had a remedy of action of debt. But that was not the so in case of sale of land,
there was no remedy available for the land, when the purchaser had paid money for the land. On
208
209
Ibid.
210
Id. at 435.
211
212
Id. at 435.
213
85
the contrary if the money was not paid of the land and the land was handed over to the party, the
action of debt would lie. In the former instance in which no remedy was available to the
purchaser, it was held that it would be unjust if the purchaser of the land was with no remedy so
it was held that the action of deceit on the case would lie. It is important to note here that the
facts nowhere say that the payment of the land was made when the contract was made. It is also
important to understand that in such cases, the remedy was not available on the ground that the
contract was broken but rather, “the grant of the land was quid pro quo for the grant of the
money”214
The action was also allowed in case of wholly executory contracts, where there was a
contract to sell the land at a fixed price, though the price was not paid, for the conveying of the
land. In case the land was not conveyed or the price was not paid the action would lie. Earliest
instances of such writs are found in the early years of Henry VI‟s reign. It was not until the
sixteenth century that the judges were able to find itself with the “object” which distinguished
between the executory contracts which could be enforceable and those which could not be
enforceable. The action did lie in cases of non-feasance when the money was paid, when the law
had reached this point, there was felt a requirement to further generalize it. Till this time there
existed a difference between the quid pro quo in action of debt and quid pro quo in the action of
assumpsit, in the former it was from the point of view of the benefit to the promisor, in the latter
it was from the point of view of the detriment to the promisee. The word “charge” was mean to
refer quid pro quo for the action of assumpsit. In the third stage of development, the action of
assumpsit expanded its domain, by way of absorption of the greater part of the sphere of debt
into its domain, and also extended to as a remedy for the breach of executory contracts. It was
during this period that the basis of enforceability of executory contracts lied on the mutual
promises of the parties and the performance on one side was no longer required, and thus wholly
executory contracts became enforceable. The action of assumpsit became an alternative to the
action of debt, initially, it could be put in motion when there was an express subsequent promise,
the later development was when the assumpsit could be allowed even without the express
subsequent promise. The action was the Indebitatus assumpsit, promise was the gist of the action
in case of indebitatus assumpsit. With these developments came the distinction between
assumpsit and indebitatus assumpsit, the former was also called the special or express assumpsit.
214
Id. at 437.
86
The indebitatus assumpsit would only lay when debt would lie and not otherwise, which meant
that it could not be brought in purely executory contracts.
During the sixteenth and seventeenth century, various factors may be said to have
contributed in the development of the doctrine of consideration, it may be attributed to the form
the special or express assumpsit and to partly from the action of debt, action of account, action of
indebitatus assumpsit and partly from equitable treatment of consideration. Result of which was,
that the principles which were underlying the doctrine of consideration were obscure and
confusing, it led to many conflicting decisions on similar facts. It may therefore be said that to
have a clear idea on the factors which lead to the genesis of the doctrine of consideration is not
possible, especially to a doctrine of consideration which started its career amidst troubled waters
of conflicting influences.
To start with it may be said that the principles from which the doctrine of
consideration gradually evolved could be attributed to the action of special assumpsit and
indebitatus assumpsit and how other competing influences had gradually modified the doctrine.
W.S. Holdsworth in his work “A History of English Law” volume 8 proposes to study the
gradual development of the doctrine of consideration upon the following lines:
(1) “Consideration may consist in mutual promises debt, or a detriment to the promisee (2)
Consideration need not move to the promisor, but it must move from the promisee. (3)
Consideration may be executory or executed, but it cannot be past. (4) Consideration need
not be adequate, but it must be certain. (5) Consideration must be an act or forbearance of
some value in the eye of law.”215
(1) Consideration may consist in mutual promises, a precedent debt or a detriment to the
promisee - By the later part of the sixteenth century, as we have already seen, it was a settled
law that mutual promises which were made at the same instance formed consideration for
each other. Such contracts, which were wholly executory in nature, could very well be
enforced in the court of law by way of action of assumpsit. Consideration imparted
competence to the parties to move the court by an action of assumpsit, as the action of
assumpsit would only lie when the precedent condition of consideration existed and the
mutual promises formed consideration for each other.
215
87
Slade‟s case (1603) 4 Co. Rep. 92b216 is an important case in which precedent debt was
taken to constitute consideration for a subsequent promise whether express or implied. This
development is said to obscure the law on the difference between the past and executed
consideration, as it was equally settled law that consideration could never be past.
Consideration in the sixteenth century (c.) was taken to mean as a detriment to the promisee,
as was taken in the action of assumpsit; as opposed to in an action of debt, where quid pro
quo meant benefit to the promisor. We very well know that till this time the expression
consideration was still an untechnical term. Since in most cases the detriment incurred by the
promisee is the benefit that accrues to the promisor, it was said, in the words of Coke that
“every consideration that doth charge the defendant in an assumpsit must be to the benefit of
the defendant or charge of the plaintiff.”217 It was in the year 1875 in Currie v. Misa (1875)
L.R. 10 Ex., that one of the most accepted definition was given by Lush, J., it consist of
“some right, interest, profit or benefit accruing to the one party, or some forbearance,
detriment, loss or responsibility given suffered or undertaken by the other.”218
(2) Consideration need not move to the promisor, but it must move from the promisee – During
the sixteenth and the seventeenth century the essence of the consideration was the detriment
to the promisee and not the benefit to the promisor. Though, it is not denied that such
detriment may result in the benefit to the promisor or the detriment to the promisee may not
result in any benefit to the promisor. The essence of consideration was the detriment to the
promisee. The detriment must also have been incurred by one to whom the promise was
made, and it must be incurred on the faith of the promise. Case in 1646 219, in which parties A
and B each agreed to pay to a sum of money to their children, in case their children marry.
Here B could sue A for the sum, even if B would not be the person benefitted but A was sure
to incur detriment. One also sees a disturbing influence of the equitable conception of
consideration in the doctrine of consideration in the common law. In the sixteenth century,
Love and affection were taken to be sufficient consideration to raise a use, but was not so in
case of the action of assumpsit. But in the seventeenth century, we do come across cases in
which love and affection, nearness of relationship was consideration a good consideration for
216
Ibid.
217
Id. at 10.
218
Ibid.
219
Id. at. 11
88
a ground of action. In the year 1677 in the case Dutton v. Poole (1677) 2 Lev. 211220 it was
held when a promise is made by son to his father to pay a specified sum of money to his
sister, it could be very much enforced by his sister. The elementary principle of contract law
was at its infancy and had its root in the action of assumpsit. In 1724 in the Case Crow v.
Rogers I Stra. 592221, it was held that a stranger to a consideration could not sue. But one
thing is clear from these judgments that the equitable conception of consideration did
influence the doctrine of consideration and ideas like consideration need not move from the
promisee did come to the forefront. When A paid money to B, for the use of C, C had an
action of debt or account, in case he was not allowed to use the sum paid to B. In the
seventeenth century, the action for the same facts was taken over by the indebitatus
assumpsit, Where in a case of Starkey v. Mill Style 296 222 of the year 1651, the promisor
gave goods to his son, in return of (consideration) which the son would pay the plaintiff a
specified sum, the objection that no consideration moved from the promisee was overruled
and the court held that there lie an action of assumpsit, there existed debt and the assumpsit
was good. The obscurity lay in the fact that the lawyers of this time were equally comfortable
to accept the benefit to the promisor as a valid consideration, provided it moved from the
promisee – the plaintiff. Sixteenth and seventeenth century may be said to have witnessed a
phase of obscurity and confusion due to various factors as we have seen, viz. various forms
of action, the role of chancery courts in influencing the doctrine of consideration in the
common law courts.
(3) Consideration may be executory or executed, but it cannot be past - In the year 1597 in the
case Barwick‟s Case 5 Co. Rep.223, the terms executory and executed were used to express
the difference between consideration, whether they related to promises fulfilled or promises
not fulfilled, though this distinction was not with reference to law of contract. In Sidenham
and Worlington‟s Case (1585) 2 Leo at p. 225 Periam, J., “uses the term executed in the
sense of past; and in Docket v. Voyel (1602) Cro. Eliza. 885 the terms past and executed are
used as synonymous; but in Lampleigh v. Brathwait (1616) Hob. at p.106 an executed
consideration, which is incorporated with the promise, is distinguished from a past
220
Id. at 12
221
Ibid.
222
Id. at 13.
223
Ibid.
89
consideration, which, not being so incorporated, does not validate a contract ; the fact that the
term “executed” then and later was used as a synonym for “past” has tended to confuse this
topic”224
Before the action of assumpsit was extended to the wholly executory contract, it lay upon a
contract where the promisee had incurred detriment. The realization of the difference
between the executed consideration and past consideration was forced upon on the lawyers of
sixteenth century. The lawyers were confronted with the question that whether a past
consideration would constitute a valid consideration. An instance of this is given in a work
by Saint Germain, in an interaction between Doctor and Student a question is posed that
whether valid consideration would lie in a situation where the party promises to pay the other
for his past services (not rendered in anticipation of promise), it was replied that it would not
constitute a valid consideration, though it might create a moral obligation to pay. 225 This was
also held in 1553 in the case Andrew v. Boughey, Dyer at f. 76a226, was followed in 1568 in
Hunt v. Bate, Dyer f. 272227. But the case would have been different if the task so done was
done by the plaintiff at the request of the defendant, if this would have been the case, the
consideration would have been valid, this difference in point was highlighted in Sidenham
and Worlington‟s Case in the year 1585228, by Rhodes, J., in the given case it was said that
when one serves A for one year without anything in return and A after the completion of one
year, promises to pay him some specified amount for his good and faithful services, an action
would lie, but if the person was paid for his services, and at the end of one year A promises
to pay the servant some extra specified sum, no cause of action would lie in such case as
there was no new consideration preceding the promise. Such cases are clear indication of the
fact that the action of assumpsit was gaining its roots in the field of implied contracts. The
natures of such performances were executed, and are therefore called as executed
consideration. These cases are also illustration to the fact that the lawyers were trying to
gradually arrive at a consensus, which differentiated executed consideration from past
consideration. To them, if the act was done by the plaintiff at the desire of the defendant, the
act so performed was executed consideration, as opposed to act done without the desire of the
224
225
226
Id. at 14.
227
Ibid.
228
Id. at 15.
90
defendant, which meant past consideration for which no action did lay in the court of law.
The controversy rose regarding, what was the basis on which such division of performance at
the desire of defendant or not at the desire of defendant rested, this controversy was finally
settled in the nineteenth century. We have already seen in Slade‟s case (1603) 4 Co. Rep. 92b
that precedent debt was taken as valid consideration for a subsequent promise to pay. In the
later decisions we see that the action of indebitatus assumpsit would lie in case of precedent
debt, even though it was a past consideration, (which was an exception to the rule that
consideration could never be past) or if one would argue that there was a valid consideration
by way of a moral obligation to pay (then it extended the scope of doctrine of consideration
to morality); there also existed exception to the rule - the performance must move from the
promisee, that the stranger to the contract could sue if the contract was made for his benefit,
all these developments lead one to conclude that the doctrine which had its basis in the
procedural aspect of assumpsit, during the seventeenth century led to the obscurity in the
logical development of the doctrine.
(4) Consideration need not be adequate but it must be certain – As Sir F. Pollock says “The idea”
[of adequacy of consideration] “is a characteristic not only in English Positive law but in the
English school of theoretical jurisprudence and politics. Hobbes says: „the value of all things
contracted for is measured by the appetite of the contractors, and therefore the just value is
that which they be contended to give.””229
From the cases in the sixteenth century, one may say that judges never attempted to go into
the adequacy of the consideration, but they did look into the matter that the consideration was
certain. In the case Mervyn v. Lyds, Dyer at f. 9Ia of the year 1553, the court said that, “if I
bargain with you that I will give you for your land as much as it is reasonably worth, this is
void for default of certainty:230
In the year 1588 in the case Harford and Gardiner‟s Case 2 Leo. 30; 231and 1600, in the case
Brett v. J.S. and his wife, Cro. Eliza. 756232, it was held that natural love and affection were
not valid consideration on which the action of assumpsit could be grounded. We have already
seen that there were also cases, in which the doctrine of consideration was mixed up with
229
230
Id. at 17.
231
Id. at 18.
232
Ibid.
91
moral obligation, but despite that the courts were moving forward in imparting consideration
a test of certainty - which meant a definite value.
(5) Consideration must be an act or forbearance of some value in the eyes of law –The question
with which the judiciary in the sixteenth century was confronted was whether forbearance to
prosecute an invalid claim was a consideration in the eyes of law or not. In the year 1568, in
Stone v. Wythipol Cro. Eliza. 126233, the court held that it did not. But in 1821 in the case
Longridge v. Dorville 5 B. and Ald. 117,234 it was held that a forbearance to proceed with the
case, in which the law was doubtful was held to constitute a valid consideration. In 1846 in
the case Wade v. Simeon 2 C.B. at p.564 the principle that forbearance to prosecute an
invalid claim was no consideration in the eyes of law, was stated quite so absolutely, it stated
as “In order to constitute a binding promise, the plaintiff must show a good consideration,
something beneficial to the defendant, or detrimental to the plaintiff. Detrimental to the
plaintiff it cannot be if he has no cause of action; and beneficial to the defendant it cannot be;
for, in contemplation of law, the defence upon such an admitted state of facts must be
successful, and the defendant will recover costs, which must be assumed to be a full
compensation for all the legal damage he may sustain.” 235 In the year 1870 in the case
Callisher v. Bischoffsheim, L.R. 4 Q.B. 449, it was stated that a “forbearance to prosecute a
bonafide claim was a good consideration, though the claim was in fact baseless.” 236 Another
question with which the judges of the sixteenth and seventeenth century were confronted was
the validity of the promise of creditor made to his debtor in consideration of either the
promise to pay (in whole or part) or the payment (in whole or part) would release the debtor.
First let us deal with the question of actual payment made whether in full or in part – In the
fifteenth century, Y.B. I0 Hy. VII Mich. pl. 4. it was stated by Brian, C.J. “that a smaller sum
cannot be a satisfaction for a larger”.237, it was followed by cases in the sixteenth century
((1563) Dalison 49 ; (1587) 4 Leo. 81)238 and the rule in its final form was stated in the year
1602 in Pinnel‟s Case 5 Co. Rep. 117a, “Payment of a lesser sum on the day in satisfaction of
a greater cannot be any satisfaction for the whole, because it appears to the judges that by no
233
Ibid.
234
Id. at 19.
235
236
Id. at 19.
237
Id. at 20.
238
Ibid.
92
possibility a lesser sum can be a satisfaction to the plaintiff for a greater sum ; but the gift of
a horse hawk or robe etc., in satisfaction is good.”239
Till the time the action of assumpsit had not extended to wholly executory contracts, it
was the action of debt which was availed. Since both action of assumpsit and doctrine of
consideration were at infancy, during the sixteenth and the seventeenth century the law was
not settled.
One of the question with which the courts of this period were confronted was whether a
lesser sum can be a valid consideration against a higher sum? Courts were of the view that it
is no valid consideration, in case where A is under an obligation to pay 10 pounds to B and in
settlement of the loan, B discharges him by payment of 5 pounds, the court held since no
detriment is faced by A, there is no valid consideration. This was followed in various cases of
the year 1584 (Bartlet‟s Case I Leo 19),2401591 (Greenleaf v. Barker, Cro. Eliza. 193)241 and
1597 (Dixon v. Adams, Cro. Eliza. 538).242Thus, criteria for determining that a consideration
was valid or not was that the payment must be a detriment to the promisee, if it is no
detriment to the promisee then it is no valid consideration. There was actually a diversion in
opinion and therefore there was two different line of action. As per one (former) line of
action, the payment (either in part or whole) would neither be the consideration for the
agreement to discharge nor was a discharge in any sense. As per the other line of cases, the
judges looked from the perspective of the promisor, they were of the view that speedy
payment or payment without any court actions was a benefit to the promisor and was
therefore a valid consideration. The judges with this line of action looked from the
perspective of the benefit to the promisor. Cases on this line of action held, as in Pinnel‟s
Case 5 Co. Rep. 117a243 that a payment of a lesser amount is a valid consideration, though a
lesser amount is no satisfaction of the greater sum. So was held in 1595 in Reynolds v.
Pinhowe Cro. Eliza. 429; 244 In 1617 in Bagge v. Slade 3 Bulstr.162; 245 Flight v. Crasden
(1625) Cro.Car. 8,246 so was the situation, till the end of the seventeenth century.
239
Ibid.
240
Id. at 21.
241
Ibid.
242
Ibid.
243
Ibid.
244
Ibid.
245
Id. at 22.
246
93
Another concern with which the courts were confronted was with respect to the promise
to pay (previously we had dealt with the actual payment). In the earlier half of the
seventeenth century, when a promise for a promise was a valid consideration, so was the case
with the promise of the debtor to make a part payment and in return of this promise was the
promise of the creditor to discharge him in lieu of the part payment. Such promises were held
to be perfectly valid, and the promise of the debtor was a valid consideration for the promise
of the creditor. This was also held in the year 1602 in Goring v. Goring Yelv. II.247
Another concern of this period was with respect to the moving of the consideration from
the third party, they were those cases in which the third party had promised to do something
for any of the party already in contract, if the party does his duty under the contract. An
example to this problem could be one in which there was a contract between the son and the
shopkeeper for the supply of cheeses, the father of the son promised the shopkeeper to pay
for the supply of cheeses, if the son did not pay. In the given illustration, shopkeeper and son
were already in contract and father was the third party and the shopkeeper had done his duty
under the contract of supply of cheese to the son. In this case the son did not make the
payment, and the plaintiff (shopkeeper) sued the father on the basis of this promise, it was
held that the consideration was valid, as was held in the case of Sherwood v. Woodward Cro.
Eliza. 700. 248 It was the counter promise of the party to perform, and not his actual
performance that constituted consideration for the promise of the third person. The
consideration was the counter promise to perform and not the actual performance; it was a
situation of consideration of a promise for a promise. The developments which took place in
the doctrine of consideration in the sixteenth and seventeenth century clearly reflects that the
doctrine of consideration was on its way of to gain some technical meaning for itself with
respect to the law of contract.
During the sixteenth and seventeenth century, the remedy of action of assumpsit had
grown manifolds in its spheres of action; it gradually eclipsed the action of debt, moved from
procedure of torts to contract, covered within its ambit wholly executory contracts. The
action of assumpsit was actually ousting other remedies, so it was quiet obvious and apparent
that the doctrine of consideration, through the principle of quid pro quo (restricted to debt),
247
Id. at 22.
248
Id. at 23.
94
was incorporated in the action of assumpsit. It could therefore be said that contents of the
doctrine of consideration would largely be shaped by the turmoil, exigencies in the action of
assumpsit. The doctrine of consideration was connected with the capacity of the parties to
bring an action in the court of law, meaning thereby the parties would avail the action of
assumpsit to enforce a contract if they had consideration. Consideration became a condition
precedent before the bringing of the action. It had also been seen how the past consideration
by way of precedent debt was valid to bring an action of indebitatus assumpsit and how this
indebitatus assumpsit exerted influence in molding the doctrine of consideration in special
assumpsit with respect to contracts, leading to conflict in opinions whether the past
consideration constituted a valid consideration or not.
2.5 CONSIDERATION IN THE EIGHTEENTH AND EARLY NINETEENTH
CENTURY
We have already seen that when the debt existed, a promise to pay the debt gave rise to
the action of indebitatus assumpsit in the sixteenth and seventeenth century. But later, almost
towards the end of the seventeenth century, there were cases in which a promise to pay the debt
on attaining majority, which was borrowed during infancy, was held to be a good consideration.
This was held in case of the year 1697 in Ball v. Hesketh Comb. 38I. 249 Similarly it was in the
year 1699, in case Hyleing v. Hastings I Ld. Raym. 389, 250a promise to pay a time barred debt,
revived the old debt and the debt became enforceable because the old debt was taken to be
sufficient consideration for the subsequent promise. In the seventeenth century there were
developments in the doctrine of consideration on the basis of moral obligation and mercantile
laws which Lord Mansfield were trying to incorporate by way of various decisions of its times.
He was trying to give a subordinate position to the doctrine of consideration in the law of
contract.
2.5.1 The Idea of Moral Obligation
Lord Mansfield in giving judgments relied mostly on the moral obligation which had its
roots in the equitable principles, rather than deciding the cases on the basis of the relatively
narrow doctrines or principles of the common law. According to Lord Mansfield, a precedent
debt is due until paid, even though all the remedy has extinguished. The debt is due morally and
249
Id. at 26.
250
Ibid.
95
in the conscience, and even a slightest acknowledgment to the fact, would revive the debt. His
decisions were guided by the decisions of the chancery courts/ chancellor. It can be said that his
inclination towards the equitable principles was fundamental in injecting into the common law
the equitable principles of law. But these bold steps were also responsible in bringing confusion
in the domain of doctrine of consideration under the law of contract. These developments were
also responsible in modifying and altering the theory of the law of contract which had taken roots
in the common law till the seventeenth century. This development was different from the
development which had taken place, under the aegis of the common law theory of law till the
seventeenth century. During the eighteenth century, the doctrine of consideration was given a
fresh look from the point of the view of the moral and natural law. The minds of the lawyers of
this time were greatly impregnated with the ideas of moral and natural law. The idea of
“conscientious obligation” as a valid consideration for a promise was the key word of the
eighteenth century. In the year 1782, Hawkes v. Saunders I Cowper 289, 251 the decision of
Atkins v. Hill (1775) Cowper 284252 was followed, the judge based his decision on the fact that
moral obligation is a valid consideration. During this time it may be said that the principle of
moral obligation in the doctrine of consideration became a well-accepted principle. In Stock v.
Masow (1798) I B. and P.,253 it was held that a smaller amount against a larger amount of debt
constituted a valid consideration in promise of the creditor to discharge the debtor.
Now we come to the on growing influence of the mercantile law in the field of contracts,
more precisely to the doctrine of consideration in the eighteenth century. The inoculation of
mercantile law in the field of commercial lay may be attributed to Lord Mansfield, he is said to
have been widely read in other systems of law of the world, other than the common law. In the
words of W.S. Holdsworth, “he was led to propound a wholly heterodox view as to the position
of the doctrine of consideration in the law of contract”254
Lord Mansfield, in the year 1765 in the case Pillians v. Van Mierop 3 Burr.1663, held
that “the law of merchants and the law of the land is the same”255, he also held that “a nudum
pactum does not exist in the usage and law of merchants.” 256 If we assume that both the
251
Id. at 28.
252
Ibid.
253
254
Id. at 29.
255
Ibid.
256
Ibid.
96
propositions are correct, then it must follow that nudum pactum must also not apply to the law of
the land, which according to W.S. Holdsworth was untrue. Initially procedural importance was
given to the doctrine of consideration, which meant that there was no need of consideration in
cases which were in writing and under seal or which were in writing, same was followed in
Statue of Frauds. But as we know that most of the commercial contracts are in writing, it would
mean that there is no need of any consideration in such contracts. As consideration was a matter
of procedure, writing was an alternative to consideration. This principle did not hold good for
long, in the year 1778 in the case Rann v. Hughes 7 T.R. 350 n. a.257 it was over ruled and the
judges in the court clearly stated that agreement without consideration was nudum pactum and
that no action lies for agreements without consideration. They further stated that “all contracts
are, by the laws of England, distinguished into agreements by specialty and agreements by parol;
not is there any such third class….. as contract in writing.”258 Thus the view of Lord Mansfield
that consideration was mere procedure failed but his principle of moral obligation did prosper.
From 1833,259the principle of moral obligation, as good consideration was beginning to decline.
Till the second quarter of the nineteenth century it was an established law, whose effects can be
seen even in the later period, second half of the nineteenth century.
One of the developments which took place in the nineteenth century was the extension of
the principle, precedent debt which had expired and could not be enforced in the court of law
was a valid consideration for a subsequent promise, to wholly void contracts. Similarly, the
principle, precedent debt was a good consideration to the promise to pay by an action of
indebitatus assumpsit, was extended to wholly void contracts. In both these principle one thing
was common, that the debt was valid and in existence though not enforceable. In the nineteenth
century an attempt was made to make a wholly void debt, a good consideration for a subsequent
promise. The debt could have been void for various reasons viz. statutory enactment or common
law rules. In the year 1809 in Barnes v. Hedley 2 Taunt. case,260 it was held that a precedent debt
of void contract was a valid consideration in case of subsequent promise to pay. This decision
was followed in the year 1813 in the case Lee v. Muggeridge261 and in 1863 in the case Flight v.
257
Id. at 30.
258
Ibid.
259
Id. at 33.
260
Id. at 31.
261
Ibid.
97
Reed I H. and C. 703. 262 The courts reiterated the proposition that debt howsoever void or
unenforceable is a debt on the conscience and is therefore a valid consideration to the subsequent
promise to pay.
Another development in the nineteenth century was the extension of the principle we
have already studied, that if an act was done at the desire of the defendant, then this act was very
much a valid consideration for any subsequent promise to pay for it. It was not based on the
principle of executed consideration rather it became enforceable as an exception to the rule that
past consideration is no consideration in the eyes of law. It was taken to be an exception on the
same principle on which the precedent debt was taken to be a valid consideration to the
subsequent promise to pay by an action of indebitatus assumpsit. The act (past) done at the
request of the defendant was already a valid consideration by virtue of the exception, it was
extended to cases in which the act was done voluntarily without the request of the defendant but
the act was such, which the defendant was legally bound to do. The basis of this principle was
not an exception to rule of past consideration rather it was based on justification that such act
constituted executed consideration for the subsequent promise.
Lord Mansfield‟s views of consideration, as holding mere evidentiary value and that
moral obligation constitutes valid consideration, if were allowed to stay and sustain, the theory of
law of contract with respect to doctrine of consideration would have been different to what it is
today. Neither the view of evidentiary value was allowed to sustain nor the concept of moral
obligation was allowed to stay. Had we allowed the incorporation of the principle of moral
obligation in the doctrine of consideration?, we would have found great similarity in the
continental concept of “causa”, where conferring of benefit or moral obligation constitute
sufficient causa.
2.6 THE MODERN DOCTRINE OF CONSIDERATION
According to the modern doctrine, consideration forms an essential and indispensable
ingredient in the formation of contract. The essence of consideration was that it imparted
enforceability to contracts. Courts held that a precedent debt could be a valid consideration for
the subsequent promise to pay provided the debt was valid and existing. The development in the
nineteenth century was that if the debt was void there could be no cause of action. In the year
1840, came a case, Eastwood v. Kenyon (1840) II Ad. and E. at p.447 which “gave the death
262
Ibid.
98
blow to the theory that moral obligation could be regarded as a valid consideration.”263 It was
believed that the concept of “moral obligation” with respect to consideration in contracts was the
gift of Lord Mansfield and was not to be found before his time. The courts in the nineteenth
century proceeded on the historical lines on which the doctrine of consideration rested during the
initial period of indebitatus assumpsit or special assumpsit. The focus shifted more on the
procedural aspect of consideration; the courts were keen to pay attention on the plea which
would be appropriate for an action. The courts from the year 1840 were clear that past
consideration is no consideration and moral obligation and past consideration were not the same
thing. The courts also came up with the distinction between motive and consideration, which was
stated with finality in the case Thomas v. Thomas (1842) 2 Q.B. 851, Patteson, J., stated that
“motive is not the same thing with consideration. Consideration means something which is of
some value in the eye of the law moving from the plaintiff.”264 Further the confusion which was
hovering the courts of eighteenth century that, whether the act done on the request of the
defendant was an exception to the rule of past consideration is no consideration or was an
executed consideration was resolved. The courts held it to be executed consideration and not an
exception to the rule that past consideration is not consideration in the eyes of law. It was stated
in its most clear fashion in Stewart v. Casey [1892] I Ch at pp. 115-116. Bowen, L.J.., stated
“The fact of a past service raises an implication that at the time it was rendered it was to be paid
for, when you get in the subsequent document a promise to pay, that promise may be treated
either as an admission which evidences, or as a positive bargain which fixes the amount of that
reasonable remuneration on the faith of which the service was originally rendered.” 265 Thus, the
exceptions which were given in the eighteenth century disappeared in the nineteenth century.
Another rule that was vehemently contented in the courts during the nineteenth century
was that the consideration must move from the promisee. This was asserted in Prince v. Easton
(4 B. and Ad. 433.)266 in the year 1833 and was finally held in Tweddle v. Atkinson (I B. and S.
393) in the year 1861 that “….consideration must move from the party entitled to sue upon the
contract.”267
263
Id. at 37.
264
Refer footnote 5 in Id.at 38.
265
Id.at 39.
266
Id. at 40.
267
Ibid.
99
The doubts that prevailed regarding the payment of smaller amount by the debtor against
the larger amount in lieu of a promise by the creditor to discharge him on payment of the smaller
amount was clarified and settled. The courts held in 1884 in the case Foakes v. Beer (1884) 9
A.C. 605268, that a payment of smaller amount is no good consideration for a promise of the
creditor to discharge him on payment of smaller amount, against a large sum.
Thus, we may say that a modern doctrine of consideration have gone through a process of
great upheaval, twists and turns; modifications and developments during the period of nineteenth
century, in which there was an effort on the part of the judges of that time, to give settled laws
for issues which they were confronted with during that period. To conclude one may say that
“The doctrine of Consideration is of Teutonic origin and the Common Law of England was the
product of the time peculiar to England”269.
Appraisal
Henry Sumner Maine observed in his work –A British comparative jurist and historian
(1822-1888) that “The movement of the progressive societies has hitherto been a movement
from Status to Contract.” With the observations of Maine; sometimes one could be irresistibly
drawn from one question to another to know the germ of body of law with respect to law of
contract, which bears the remotest antiquity of ancient law and one does not rest unless the
answers to those questions are substantially found and perhaps every question proves to be
worthy of study.
On the assumption of status to contract, the researcher proceeded with an inquiry to
know about the earliest ideas of mankind with respect to the general theory of contracts having a
special reference to the idea of consideration in contracts under English Law. At the outset,
though the inquiry appeared to be an enigma, however, it was pertinent to have a better
understanding of contracts in English Jurisprudence.
Nothing has excited the attention of the able investigators or expositors of English
jurisprudence more, than the study of contracts. In English law, the descent of the body of law is
ascribed to the immemorial unwritten tradition, in contrast to the Roman law where, most
investigators through the use of their language have avowed that body of the system of Roman
law rested on the Code called as the “Twelve Tables”.
268
Ibid.
269
100
In its infancy man‟s conception of law was delineated under the metaphysical and
theological influences. The King who decided the disputes was supposed to do so by virtue of a
direct inspiration from some divine and supernatural power(s) i.e. to say that authoritative
adjudication of a dispute of a right or wrong was done not on the basis of some law but
something which emanated from some higher power and was breathed into the judge‟s mind at
the time of deciding the dispute. One may say that adjudicated cases existed even prior to any
rule, principle or custom. The monarch bore an impression of being super eminent and sacred,
but this impression watered down gradually and the office of king was usurped by the feeble
members of the council or sycophants, giving way to aristocracies. The authority of the monarch
was reduced to the mere formal head with pretended sanctity. The oligarchy gradually
monopolized the knowledge of law through which disputes were decided, eventually arriving at
the epoch of Customary Law. This law which was exclusively known to the privileged few or a
sacerdotal college is what is called as unwritten law. Under English law, one may say, that at a
point of time there was a period when there was a large mass of civil and criminal rules known
exclusively to the judges, which may be called as unwritten law, however, it gradually ceased to
be unwritten law and took form of written case-law.
To trace the roots of the doctrine of consideration, one had to take a plunge into the
enormous heap of information dealing with ancient law on contracts. It can be evinced that when
the societies were simple and trade was at its infancy, the idea of the doctrine of consideration
was nearly absent, but when the commerce grew on large scale the idea got clearly embodied in
the legal system. In the words of Maine,“…. Neither Ancient Law nor any other source of
evidence discloses to us society entirely destitute of the conception of contract but the conception
when it shows itself is obviously rudimentary…”
The general theory of contract in the English law can be traced in the history of the
common law actions. Before the conquest of Normans (1066 BC), the predecessors of Britain
were the Vikings, the Anglo Saxons and the Romans. Anglo-Saxon society barely knew what
credit was, and had not occasion for much regulation of contracts.
As supra discussed, in the words of Sir Henry Maine, “that substantive law has at first
the look of being gradually secreted in the interstices of procedure” To have a better understating
of the substantive contract law, one has to be well versed with the various forms of
procedure/actions prevalent in the common law, generally in the fourteenth and fifteenth century.
101
We have already dealt with the various forms of action in the chapter based on the discussion of
contract namely, actions of Account, Covenant, Debt, Detinue and Assumpsit. Since by the end
of the fifteen century other forms of actions gradually watered down, it was action of assumpsit
that prevailed. It can be said that it was the action of assumpsit, which could be attributed to the
origin of the doctrine of consideration. Though, it is not denied that the other forms of actions
did mention of the “quid pro quo.”
In the middle ages it can be said that right was quite an insignificant matter and
procedure formed the very essence of getting redress. The real skill consisted in finding out the
appropriate form of action. If there was any mistake made in selecting, it was quite fatal to the
result. The litigants had to prove their case before the court, by means of proof such as oaths and
ordeals. The ordeals were used in graver and more heinous charges. It was an appeal to God
direct. Viz. Lifting of red-hot iron by the accused and to walk over the same without being burnt.
“The Common Law of England has grown around the royal writs and these writs were the most
important part of the law which was the sovereign law of the King in the Kingdom.” We find
reference of the Year books; which were the Law Reports of the Middle Ages.
“The word contract was used in the time of the Year Books in a much narrower sense
than it is today. It was applied only to those transactions where the duty arose from the receipt of
quid pro quo: e.g., a sale or loan.” Such contracts are referred to as Real Contracts, today.
Specialty contracts/ Formal contacts were called as “grant, an obligation, a covenant but not
contract. “To summarize, it can be said that the evolution of the doctrine of consideration is of
recent origin and is peculiar to the English common law, though its inception cannot be traced
with definiteness. Various authors have laid different time periods for the usage of the term
consideration and/or quid pro quo. As early as during the code of Aethelbert the kind of Kent,
one does find mention of the term consideration. On the other edge of the continuum, one finds
mention of consideration with definiteness in the beginning of the sixteenth century, according to
Edward Jenks, “the doctrine itself was clearly known by the beginning of the sixteenth century;
for it was made the basis of an elaborate discussion in Dialogues between a Doctor of Divinity
and a Student of the Laws of England, published in 1523”. Others attribute the inception of
consideration to the various forms of actions as it is said that substantive law finds its genesis in
the procedural law.
102
Some believe that consideration has its roots in the doctrine of “causa” which is a
Roman concept. However, it is submitted that on going to plethora of information about the
doctrine of consideration, it may be said that the concept of consideration is peculiar to English
common law, and it does not in any way reflect the Romanization of the English law. With it
gradual inception, believing it to be from the end of fifteenth century, it has grown immensely
and has been deeply fortified in the English Common Law and has gradually evolved to be one
of the most important essentials in the formation of the contract. Though it is true that the
concept of consideration forms one of the essential building blocks in the formation of contract,
however it is submitted that this concept is still on its way to evolution and development till date.
It may also be said that despite various attempts made by the jurist, lawyers, judges to define the
term consideration, no one has been able to give the comprehensive definition of the term.
However, the doctrine of consideration is deeply rooted in the English Common Law and forms
one the essential elements in the formation of a contract.
_______________________
103

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CHAPTER – II

EVOLUTION OF CONCEPT OF CONSIDERATION

According to some academicians, thinkers, jurists and in view of the Encylopædia

2.1 ROMAN LAW

Encyclopedia, Babylon, Definition, available at: http://www.ancient.eu/babylon/ (published on April 28,

- Verbis – by formal words (Formal Oral Contract).

2.1.1 Verbal Contract

enrichment, Merriam- Webster, Condictio, available at: http://www.merriam-

2.1.2 Litteris Contract

2.1.4 Consensual Contracts

2.2 ANGLO-SAXON (410-1066)43

Ancient History, Vikings, available at: http://www.bbc.co.uk/history/ancient/vikings/ (last visited on

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