Sec 494

The distinctive rule of our law, therefore, is that unless with respect to negotiable paper, which is good though without consideration in the hands of popular usage. Hence, when the rule privileging stipulations ceased to exist in Germany, the converse rule, that nudae pactiones (contracts destitute of form) could not abe sued on, lost its force. On the other hand, under the old English system, which required, as will presently be seen, the oath of witnesses actually present at a transaction to sustain a suit, the maxim that nudae pactiones would not sustain a suit was retained, but nudae pactiones were interpreted as meaning very different things in England from what they meant in Rome. In Rome, nudae pactiones were bargains "naked" because they were not "clothed" with legal form. In England they were bargains " naked" because they were not clothed with proof of a business transaction between the parties. Promise without culty of determining, unless a set form was used, whether one party actually meant to hind himself to another. The use of forms, also, it is argued, adds precision and deliberation to business; people who have to resort to a form to express their views are more likely to act intelligently and accurately than is the case when business is conducted without settled form by word of mouth. This reasoning is to be distinguished from that which rests forms on evidential grounds. It is true that it may be argued that unless contracts are solemnized according to a fixed form much fraud will ensue; and it is on this ground that the English Statute of Frauds, re-enacted with greater or less modifications in all our states, rests. But that this was not the ground taken by the early Roman jurists is shown by the fact that stipulation, prescribed by them as the primary form of binding contract, was not to be in writing, and could be solemnized without witnesses. The prescribed form fell into two classes, oral and literal; verborum, literarum obligatio. Of oral contracts, there were two kinds: nexus and stipulation. In addition to these formal contracts, suit could be brought on contracts executed on one side (re contracta obligatio, Real-Contract), and on certain specified business engagements which under the title of consensual contracts (consensu contracta obligatio) were specifically recognized by the Roman law, viz., emtio venditio, locatio conductio, societas, mandatum, or, to popularize these terms, sale, hiring, partnership, and agency. In partnership and agency, it is true, this reason does not apply, but these partake of the nature of real-contracts which are executed on one side, and either may be revoked at will. (See further, supra, note to the preceding heads were called nuda pacta, nudae pactiones; on these no suit could be brought, although they might be the basis of an exception. It will be seen, therefore, that the term nuda pacta has a very different meaning in the Roman law from what it has in our own law. In the Roman law it means a contract not clothed in the terms the law prescribes; in our own law it is used (leaving specialties and negotiable paper out of account) as meaning a contract without consideration. The strictness of the old Roman law, however, in respect to nuda pacta was relaxed; and it was held that suit could be brought on (1) "pacta in continenti adjecta bei bonae fidei Kontrakten;" (2) pacta praetoria, which were contracts on which suit was allowed by praetorian edict; and (3) pacta legitima, on which suits were given by imperial constitutions. These contracts, on which suit could thus be brought, were called pacta vestita, as distinguished from nuda pacta. In the common law in force in Germany the distinctions above stated {supra, sec 1) did not take root; on the contrary, by that law, a nudapactio (i, e. a claim not clothed with any specific form) may sustain a suit. Forms, so argues Koch, take their origin in popular usage, and without support of such usage cannot exist. In this way the stipulation took its origin in Rome; and in the transfer of the Roman jurisprudence to Germany this particular provision was dropped, since it found no response in German a bona fide endorsee, and to sealed obligations, which will be presently considered, a gratuitous promise, i. e. a promise not based on some detriment to the consideration ordinarily invalid.

Causa distinguishable from consideration. In the Roman law the term causa impul-siva, or sometimes causa, is equivalent to motive, or "Bewegsgrund," and gives, according to Koch (Ford. ii. sec 101), the reason for which a contract is made. It differs, therefore, from our consideration in this, that a consideration is not always a reason, and a reason is not always a consideration. A moral obligation, for instance, while a reason, is not a consideration, while many considerations (e. g. a carrier being permitted to withdraw the thing carried from the owner's care, and a trivial forbearance as to time) are not in any right sense of the term reasons. Hence follows an important difference between the Roman law and our own: by the Roman law the true reason must be given, while by our law it is enough if a sufficient consideration be expressed even though this consideration was not the operative reason. The operative reason, for instance, leading to a conveyance in payment of services already received may be gratitude, but as this consideration could not support the conveyance, the deed alleges a moneyed consideration which, though grossly inadequate, is yet sufficient. In the Roman law, therefore, the causa is introduced with a " because;" and the causa is logically distinguishable from preamble and inducement, which narrate preliminary conditions but do not undertake to give actual reasons. Hence, when a contract is impeached under the Roman law for defect of causa, in other words, when the plea ex falsa causa is set up, the defendant must show (1) that the causa specified was untrue, and (2) that he would not have made the contract had he not supposed that it was true. Falsity of cause alone will not be sufficient to rescind a contract; it is necessary to show in addition that had the promisor known the falsity of the cause he would not have made the promise. Hence, the defence ex falsa causa is equivalent to the defence of error in substance discussed supra, sec 180 et seq. The history of the doctrine of consideration has been lately the subject of much critical examination. According to Mr. Langdell, to constitute a binding contract in the ancient English law - in other words, a contract on which debt, then the sole form of action, could be brought - it was necessary " that the thing given or done, in exchange for the obligation assumed, shall be given or done to or for the obligor directly; that it shall be received by the obligor as the full equivalent for the obligation assumed, and be, in promisee, is not legally binding gift will not be enforced even ! legal contemplation, his sole motive for assuming the obligation; and, lastly, that it should be actually executed, i. e., that the thing to be given or done in exchange for the obligation be actually given or done, it not being sufficient for the obligee to become bound to do it. Unless there is a consideration which satisfies each of these requirements, debt will not lie; and this is equivalent to saying there is no binding contract according to the ancient law." Langdell, Summary, etc. 59. Valuable as are Mr. Langdell's contributions to this branch of our literature, there should be some qualification, I think, of the above statement. Waiving the question whether the second condition (viz., that the consideration "should be received by the obligor" as a full equivalent) is not defective in imposing, if the term be used subjectively, an impracticable test, I cannot concur in accepting the third condition, viz., that the consideration should have been the " sole motive." I question whether there is any case in which any particular consideration can be spoken of as the "sole" cause, and in the Roman law, in which "causa" and "motive" are convertible, it was never claimed that the concurrence of other motives made inoperative the motive alleged. - To the consideration necessary to support an action of assumpsit, according. to Mr. Langdell, it is not necessary that either of the above conditions should contribute. "If anything whatever (which the law can notice) be given or done in exchange for the promise, it is sufficient; and, therefore, Hence a promise to make a in equity, unless the promisee if one promise be given in exchange for another promise, there is a sufficient consideration for each." Mr. Langdell goes on to argue that the old action of "debt" was based on a contract which was virtually the real contract of the Roman law. " The consideration, therefore, was of the very essence of a debt - was in fact what created it. But when the action of assumpsit was introduced, and a new class of contracts came to be enforced, it was neither necessary nor possible to require the old consideration to make the new contracts binding. It was not necessary because it was neither supposed nor claimed that the new contracts created or constituted debts; and it was not possible, because the very reason why a new action was required to enforce these contracts was that they had not a sufficient consideration to support an action of debt." . . . "The result is that the term 'consideration' has practically changed its meaning; having formerly meant the consideration necessary to create a debt, it now means the consideration necessary to support assumpsit."