Conventio, pactum and contractus under the ius commune

Since the time of the intellectual rediscovery of the Digest, a fairly sterile and pointless debate has been raging as to which term should be used as nomen generale for the law of contract.

"Le contrat est une convention par laquelle une ou plusieurs personms s'obiigent, envers une ou ptusieurs autres, a donner, dfaire ou a ne pas jaire quelque chose. "

The Dutch and German usus modernus finally settled for the term "pactum". Vinnius appears to have been one of the last authors to discuss the matter in detail.¹³³ When he wrote his Tractatus de Pactis, the crucial breakthrough towards recognition of the principle of "ex nudo pacto oritur actio" had been achieved. From a purely systematic point of view this meant that a distinction had to be drawn between pactum in a wider sense and the more specific term "pactum nudum". Pactum in the wider sense comprised both pacta nuda and contractus.

But did it still make sense to distinguish these two species of "pacta"? Both, after all, were based on consensus, and both were now enforceable. It slowly dawned upon contemporary authors that the whole basis for the Roman typology of contracts had fallen away.¹³⁴ Its raison d'etre, after all, had been the fact that not all agreements beget an action. The usus modernus, however, by and large, lacked the boldness to draw the dogmatic consequences of this insight. A new vision of contractual liability was required. It was provided by the natural lawyers.

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