Causa as an extra piece of "garment"

The concept of causa, under these circumstances, could, of course, no longer be confined to datio vel factum or to a negotium antecedens (as had been the case when the glossators had discussed innominate real contracts and stipulations);^{[2834] [2835] every causa extrinseca (that is, either finalis or effidens) was sufficient.}

"Ubi non est causa, ibi non est causatum, et ideo ex pacto nudo non insurgit actio, quia actio est quoddam causatum, ergo non potest sine causa oriri."^[2837]

Because there is no causa, a (bare) pact cannot beget an action. Conversely, therefore, if, and as long as, a (bare) pact is based on a causa, it may in fact be enforceable! The doctrine of causa could therefore be used as an ingenious way to bridge the rift that had developed between the legists and the canonists. The legists, as we have seen, distinguished between (enforceable) pacta vestita and (unenforce­able) pacta nuda.^[2838] The canonists, on the other hand, were prepared to grant an action even on the basis of a pactum nudum. This was, however, justifiable only if the parties had seriously intended to enter into legal relations, and that in turn was ensured by generalizing the causa requirement.^[2839] If one therefore wanted to translate the situation under the canon law into the terminology developed by the glossators, one merely had to refer to causa as an extra piece of garment,^[2840] with which the canonists—charitable as could be expected—were prepared to save a poor and naked pactum from the chill of death. At least in theory and pro forma it was therefore possible to claim that the rule of ex nudo pacto non oritur actio still reigned supreme.

At the same time, however, a terminological ambiguity gained ground, which often made it very difficult to identify the position of individual authors; for the term "nudum pactum" came to be used not only where an informal agreement was not clothed by one of the traditional vestimenta but also in the sense of a pactum nudum a causa. Thus, for instance, Jason de Mayno still recognized the principle of ex nudo pacto non oritur actio (although he detailed no fewer than 16 limitationes), but confounded the doctrine of the vestimenta pactorum with the causa theory when he said: "[S]ed pactum nudum dicitur, cui non subest causa."⁴ This is also the key to resolving the apparent contradiction in the works of Ulrich Zasius. If he still emphasized that bare pacts were not actionable,^{[2841] [2842] he meant pacta without a causa; and this is entirely in accordance with the famous rule of the Freiburger Stadtrecht (drafted by Zasius): "Wer bedechtlich zusagt, der sol es halten." For this is what causa meant: the pactum must have been made "bedechtlich" (deliberately) or, as others formulated it in Latin, serio et deliberate initum.[2843]}

5.