Contract and pollicitatio

(a) From promise to contract

Even more important, however, than the reception of these and other individual doctrines was the fact that in the course of the 19th-century contract emerged as the essential systematic cornerstone of the law of obligations.

Contractual obligations, it was now argued, were those arising from voluntary acts of the will.^[2956] Everything that did not fall within the purview of contract was either tort or quasi-contract. Yet, traditionally, the common law had been primarily concerned with promissory liability^[2957] (as had indeed been continental canon law). It had grown up around the action of assumpsit,^[2958] a remedy for breach of promise.^[2959] Promise and breach of promise are essentially one-sided notions, and they were now replaced by an essentially two-sided conception.^[2960] As a consequence of this, unilateral acts, particularly the promise of a reward, were now bound to give rise to severe doctrinal headaches. Here we come, once again, across the ever-memorable smoke ball case.^[2961]

(b) The smoke ball case

A certain Frederick Augustus Roe had invented the carbolic smoke ball as a "... Device for Facilitating the Distribution, Inhalation and Application of Medicated and Other Powder". In the wake of the great influenza epidemic that swept through England in the winter of 1889-90, he began to market it as being able to "positively cure Influenza, Catarrh, Asthma, Bronchitis, Hay Fever, Neuralgia, Throat Deafness, Hoarseness, Loss of Voice, Whooping Cough, Croup, Coughs, Colds, and all other ailments caused by Taking Cold". A massive promotion campaign was launched, in the course of which an advertisement was placed in the Pall Matt Gazette of 13 November 1891, promising a reward of 100 Pounds Sterling to be paid by the Carbolic Smoke Ball Co.

"to any person who contracts... Influenza, Colds, or any diseases caused by taking cold, after having used the ball 3 times daily for two weeks according to the printed directions supplied with each Ball".

Mrs. Carlill saw the advertisement, purchased a smoke ball and diligently snuffed and sneezed three times daily for two weeks. Despite all her exertions, she contracted influenza shortly afterwards. When she claimed the 100 Pounds Sterling promised, Roe refused to pay. Legal proceedings were instituted,^[2962] in the course of which a verdict was given in favour of Mrs. Carlill^[2963] and upheld on appeal.^[2964] The background story to this case, which has recently been unfolded, is full of interesting and amusing details. The crucial point, however, in our context, is that the court did not regard the promise of the reward as such as binding. It tried to fit the decision into the new doctrinal framework and declared that the reward could be claimed only on the basis of a "unilateral" contract. Like all contracts, it required the exchange of offer and acceptance. Consequently, the advertisement was taken to constitute an offer (ad incertas personas), which Mrs. Carlill had, in turn, accepted by performing the act specified therein. It can hardly be denied that this extension of the concept of acceptance (which need not be communicated to the offeror) is a somewhat strained cons truction.^[2965]

Yet, by attempting to reconcile these types of cases with (what had by then become) orthodox contractual theory, the English common law has been more rigid and dogmatic than some of the modern civilian jurisdictions themselves. In the German Civil Code, special provision is made for the promise of a reward-^[2966] It is known as "Auslobung",^[2967] a unilateral act, which does not require acceptance. Whoever performs the condition of the reward is entitled to claim, whether he knew of the promise and acted with a view to the reward or not.

Contrary to the prevailing opinion under the ius commune,^[2968] ^{^[2969] ^[2970] the BGB does therefore not regard "Auslobung" as a contract;¹⁹⁹ we are dealing here with one of those rare exceptions to the general principle of § 305, according to which for the creation of an obligation by legal transaction a contract between the parties is necessary.¹⁹ It is interesting to observe that the South African courts have not seen their way open to adopt a similar approach.^[2971] They have come to the same conclusion as the English courts and therefore had to dismiss—reluctantly^[2972]—the claim of a certain Mr. Bloom who had performed the act (for which a reward had been publicly announced) without, however, having had any knowledge of this offer of reward. Since under these circumstances he could not have intended to accept anything, no contract had come into existence; and as a result of this, no legal tie had been established between the parties.^[2973] This solution may be inconvenient and unsatisfactory but it cannot be described as wrong from a historical point of view; for a general institution of a promise of reward constituting a unilaterally binding legal act can be found in neither the Roman nor the classical Roman-Dutch sources.^[2974] Pollicitatio is probably the closest we get. But although this was indeed an informal, unilateral promise that was enforceable in the cognitio extra ordinem,^[2975] it was a far cry from a promise of reward a la §§ 657 sqq. BGB.^[2976] Firstly, the pollicitatio was made for the benefit of the promisor's municipality, that is, of a specific (public) body, whereas it is a characteristic feature of the promise of reward that a specific addressee does not in fact exist; it is a promise ad incertas personas. And secondly, the institution of pollicitatio was designed exclusively to serve the public interest; only as far as the promise of gifts or performances of work "propter communem utilitatem" were concerned, was one prepared to deviate from general principles (that is, from the requirement of consensus).
Promises of reward, on the other hand, are not thus confined; it is usually the promisor's private interest that dominates. All this is not to say that no private rewards were promised in Roman times. On the contrary: we find a variety of examples in Roman literature as well as, for instance, in inscriptions on walls and necklaces of slaves.^[2977] ^{^[2978] ^[2979] ^[2980] ^[2981] Characteristically, however, they were not treated as pollicitationes, but seem, by and large, to have remained extra-legal phenomena.^[2982] (d) Pollicitatio and contractual [lability
How does pollicitatio fit into the modern system of contractual liability, as designed, essentially, by the natural lawyers? Grotius, as we have seen, required acceptance in order that a promise may transfer a right.^[2983] Consequently, neither promissio nor pollicitatio was able to confer (iure naturali) a right upon another person to compel performance. Grotius' subtle distinction between promissio and pollicitatio^[2984] tended to be dropped by later writers,^[2985] but whether one identified the two or not, the result remained the same: "jus proprium alteri non dat".^[2986] This view, shared, as far as Roman-Dutch law is concerned, by Voet^[2987] and others, prevailed in most civilian systems down to the 19th century;^[2988] ^{^[2989] ^[2990] ^[2991] via Pufendorf and Pothier, it filtered through into the English common law. Pothier, as usual, stated the conceptual distinctions most clearly. A contract includes the concurrence of intention in two parties, one of whom promises something to the other, who on his part accepts such promise. A pollicitatio, on the other hand, is a promise not yet accepted by the person to whom it is made. "[AJux termes du pur droit nature!", it does not produce, without such acceptance, what can properly be called an obligation.²⁰⁵ This exposition (based; as it was on Ulp.}
D. 50, 12, 3)²⁰⁶ became the basis of the English doctrine of offer and acceptance.²⁰⁷ A pollicitation is "a promise made but not accepted";^[2992] ^{^[2993] but only an accepted promise can give rise to a (contractual) obligation. The concept of pollicitatio as a unilateral but binding promise was revived in Germany only in the course of the 19th century. Somewhat surprisingly, the so-called "Polliz,itationstheorie"^2m was, as we have seen, accepted by the drafters of the BGB.^[2994] In Scotland, the same view had already gained ground much earlier, since Viscount Stair in his Institutions of the Law of Scotland had refused to follow Grotius in this respect; in his view, an absolute promise which does not contemplate acceptance is enforceable as such."^[2995] Sir Percival Gane's suggestion that pollicitatio may yet figure prominently in South African law has thus far not been taken up. "It is curious", Gane wrote in 1957,^[2996]
"that in a country in which promises to public concerns and civic bodies are not uncommon, and promises to religious bodies very common, more use has not been made of this title [sc. D. 50, 12 De pollicitationibus]."
It goes to show that the civilian doctrine of offer and acceptance in its inflexible English form still reigns supreme in this part of the world.
IV.}}}

<< | >>

↑

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

Contract and pollicitatio

More on the topic Contract and pollicitatio: