Causa and consideration in English law

Finally, and perhaps most importantly, the requirement of causa became part and parcel of the English common law and survives, to this day, in the form of the doctrine of consideration.⁵¹ It is, in fact, one of the central and most characteristic features of the English law of contract; and also one of its most problematic ones.

The relationship with other core concepts of contractual liability (such as offer and acceptance) is strained and uneasy, to say the least, but so far consideration—like cause in France—has survived with extraordinary tenacity the attacks of all those critics who have questioned its utility.' In a certain sense, the doctrine of consideration was little more than "the practical answer to an urgent problem".⁵³ In the course of the 16th century the English courts started to shake off the fetters of the medieval law of contract, a formulary system determined essentially by the catalogue of original writs in the Register (Registrum Brevium).'⁴ The rise of the action of assumpsit (around which the modern English law of contract has grown up) brought about an extension of liability.⁵⁵ Some sort of criterion was needed to define how far one was prepared to go. Consideration was brought in to ensure that the expansion of the law of contract remained under control; it was designed to delimit the actionability of informal promises by reference to the circumstances in which the promise in question was made.⁵⁶ The consideration for a promise originally meant the factors which the promisor considered when he promised, the circumstances which motivated his promising. Christopher St. German, in his famous dialogue between a doctor of divinity and a student of the common law, put it thus:

"[A]nd of... promyses made to a man vpon a certayne consyderacyon, yf the promyse be not agaynst the lawe.

As yf A promyse to gyue B XX li. bycause he hathe made hym suche a house or hath lente hym suche a thynge or suche other lyke, I thynke hym bounde to kepe hys promyse. But yf hys promyse be so naked that there is no maner of consyderacyon why yt sholde be made, than I thynke hym not bounde to perfourme it...,"⁵⁸

"In modern terms", as Professor Simpson comments,⁵⁹

^s Cf. supra, pp. 504 sqq.

² B.S. Markesinis, "Саша and Consideration: A Study in Parallel", (1978) 37 Cambridge LJ53.

C.H.S. Fifoot, History and Sources cfthe Common Law. Tort and Contract (1949), p. 399.

^s On the Royal Writs and Writ Procedure cf. e.g. R.C. van Caenegem, The Birth ofthe English Commi Law (1973), pp. 29 sqq.; for a comparison between the English writ and the Roman action, see Hans Peter, Actio und Writ (1957).

® For all details cf. Simpson, A History ofthe Common Law of Contract. The Rise ofthe Action of Assumpsit (1975), pp. 199 sqq.; cf. also infra, pp. 777 sqq.

® Simpson, History, pp. 316 sqq. (316, 321).

^я Simpson, History, p. 321.

® Second Dialogue. Chapter 24, p. 229 (vol. 91 of the Publications of the Selden Society, 1974, eds. Plucknett and Barton).

® History, p. 322.

"one can see the plausibility of the theory—a promise which lacks any adequate motive cannot have been serious, and therefore ought not to be taken seriously."

All this by now sounds very familiar to us. The "naked" promise, the reasonable motive (causa impulsiva), the serious (and deliberate) intention of the parties: everything could have been stated in similar terms by many contemporary Continental lawyers. In fact, the very starting point of the whole dilemma, the Roman principle of "ex nudo pacto non oritur actio", had penetrated, almost three centuries before, and through the influence of Azo, into the common law of England.⁶⁰ This is apparent from a little couplet, quoted by Bracton in his great restatement of the laws and customs of England: "Re, verbis, scripto, consensu, traditione, iunctura vestes sumere pacta solent."⁶¹ Now one could again refer to Roman-Canon doctrine; for there the causa requirement had been used to ease the way from ex nudo pacto non oritur actio to ex nudo pacto oritur actio, and had thus been instrumental in solving the very problem with which the common law, too, was faced.

The prime agents of this process of assimilation were "Doctor and Student" and the Court of Chancery. St. German's dialogue, which contains a considerable amount of material derived from canon law, became a most popular and influential book;⁶² the immediate sources of the theory of contract set forth in it have been identified as the Summa Rosella by the Franciscan Baptista de Salis⁶³ and the Summa Angelica, an encyclopedia compiled by another Franciscan, Angelus de Clavassio, doctor utriusque iuris of the University of Bologna.⁶⁴ And the Chancellors of the Court of Chancery, it must be remembered, down to the time of Henry VIII, were clergymen, usually

® On the concept of "nudum pactum" in England, see Nikolaus Benke. " 'No inefficacy arises merely from the naked promise'", (1987) 14 bus Commune 1 sqq.

^a De Legibus et Consuetudinibus Angliae, f. 16 b (p. 64); cf. also F.W. Maitland, Bracton and Azo (vol. 8 of the Publications of the Selden Society); Paul Vinogradoff, Roman haw in Medieval Europe {2nd ed., 192Y), pp. 116. Even earlier than that, we find in the Tractatus de legibus et consuetudinibus regni Angliae (ascribed traditionally to Glanvill) the following enumeration of causae debendi: "Aut enim debetur quid ex causa mutui, aut ex venditionis causa aut ex commodato, aut ex locato, aut ex deposito, aut ex alia iusta debendi causa" (X, 3, p. 117). On the exact meaning and impact of this statement on the treatment of the law of obligations by Glanvill, on the Romanistic background thereto and on Glanvill's (Continental) sources, cf. the study of Horst Kaufmann, "'Causa debendi' und 'causa petendi' bei Glanvill sowie im romischen und kanonischen Recht seiner Zeit", (1961) 17 Traditio 107 sqq.

Cf. e.g. Simpson, History, pp. 376 sq.

^s It was "an encyclopedia with the material arranged under alphabetical headings"; first published under the title Summa Casuum Utilissima, it later became known as the Summa Rosella, "because it was a collection of the most elegant conclusions... which could be compared to a garland of sweet-smelling roses which Baptista had gathered together" (Simpson, History, p. 379).

⁶¹ Cf. e.g. Paul Vinogradoff, "Reason and Conscience", (1908) 24 LQR 377 sqq.; Simpson, History, pp. 377 sqq. well versed in canon law and Roman law; most of them were in fact law graduates of Oxford University.^{^[2850]}

. [I]t is hardly conceivable, if [their]... careers... are borne in mind, that as judges in conscience they could avoid deriving ideas from the canon and civil law."^[2851]*'

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Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

Causa and consideration in English law

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