Domat and Pothier

In France, Jean Domat was the great initiator. In his main work, "Les loix duties dans leur ordre naturel", he developed his ideas with such an elegance and clarity that they became, via Pothier and the code civil, the basis of modern French contract law.

"L'usage des conventions est une suite naturelle de Vordre de la societi civile, et des liaisons que Dieu forme entre les hommes. Car comme il a rendu necessaire pour tons leurs besoins, l'usage reciproque de leur Industrie et de leur travail, et les diffirens commerces des choses; c'est princtpalement par les conventions qu'ils s'en accommodent. "^Sl*

Pufendorf had put it similarly: contract is the vehicle for the exchange of goods which is necessary (and thus natural) in view of the innate

^Q Cf. e.g. Duarenus and Donellus. as discussed by Nanz. Vertragsbegrijf, pp. 78 sqq. On the attitude of the glossators and commentators and of the authors of the usus modernus, cf. Nanz, Vertragsbegriff, pp. 44 sqq., 93 sq., 130 sqq.

The general term for agreement in the medieval English common law was "covenant".

⁰³ Tractatus de pactis, Cap. I, 1 sqq. (A translation of this tractatus into Afrikaans by L.J. du Plessis has recently (1985) appeared.)

^m Cf. e.g. Struve, Syntagma, Exercit. VI, Lib. II, Tit. XIV, 32; Stryk, Usus modernus pandectarum. Lib. II, Tit. XIV, §§4, 7; Voet, Commentarius ad Pandectas, Lib. II, Tit. XIV, IX;

¹² Liv. I, Introduction.

human imbecillitas.^{[2916] [2917] The central significance attached to the law of contract led Domat to place it, very prominently, at the beginning of his new system of private law. "Des Conventions en general" is the first title of the first book of the Loix civiles, and at the outset the following definition is provided:}

"Les conventions sont les engagements qui se jorment par le consentement mutuel de deux ou plusieurs personnes qui sejont entr'eux une loi d'executer ce qu'ils promettent.

The latter part of this phrase takes up a statement by Papinian (D. 50, 17, 23: "legem enim contractus dedit")^[2918] and is typical of Domat's attitude towards Roman law. He tried to avail himself of as much of the material contained in the Digest as possible, and regarded as his main task the elimination of those "subtilitez", "qui ne sont pas de notre usage" and which had prevented the principles of Roman law from being entirely consonant with the precepts of the "equite naturelle".^{[2919] [2920] One of these subtleties which obviously had to be rejected was the Roman scheme of contracts; but, on the other hand, the Roman concept of consensus could be used as a constitutive element for a generalized law of contract. Hence: "Les conventions s'accomplissent par le consentement mutuel donne et arrete reciproquement.>,4{> Domat did not analyse the concept of consensus any further. This was done only by Pothier, who distinguished offer and acceptance:}

"Le contrat renferme le concours des volontes de deux personnes, dont I'une promet quelque chose to the European continent. The history of the law of contract provides ample support for a thesis crisply stated by Edmund Burke in the words: "The Laws of all the nations of Europe are derived from the same sources."^[2937] It is in this spirit that William Strahan set about translating Domat's Loix civiles into English: it contains "all the Fundamental Maxims of Law and Equity, which must be the same in all countries".^[2938] It is in this spirit, too, that in 19th- century Britain treatises became the typical form of legal writing.^{[2939] [2940] This is well illustrated by the first English monograph that can properly be called a legal treatise, Sir William Jones's essay on the Law of Bailments (1781). In the introduction to this work, Jones sets out his plan of work as follows:}

"I propose to begin with treating the subject analytically, and, having traced every part of it up to the first principles of natural reason, shall proceed historically, to show with what perfect harmony these principles are recognized and established by other nations, especially the Romans, as well as by our English Courts, when their decisions are properly understood and clearly distinguished....

Significantly, it was a branch of the law of contract that was first subjected to this treatment; and in a sense, therefore, Jones's book heralded the era of innovation into which the English contract law was about to enter.^[2941] The stress on principles, as Atiyah has pointed out, was an important element in contemporary intellectual ideals.^[2942] Thus, in the law of contract the emphasis shifted from the traditional method of jumbling around individual precedents to a systematic exposition of general principles. Hence the need for books which dealt with the law of contract as a whole. These textbooks were written by scholars who were usually well versed in Roman law. They created the modern general law of contract,^{[2943] [2944] and in doing this, they were}

"engaged upon an enterprise which was new to the common law... but old to the civilian tradition; they were trying to do what the civilians, the canonists and the natural lawyers had been doing for centuries".^!M

It is hardly surprising, therefore, that they borrowed heavily from that civilian tradition: from Roman law, from Domat, Grotius and Pufendorf, from Pothier and from Savigny. Domat's, Grotius' and Pufendorf s main works were all available in English translation by the end of the 18th century. Pothier's Traite des obligations was made accessible to English lawyers by W.D. Evans in 1806 and it soon became one of the most influential sources of modern English contract law. The high esteem in which Pothier's clear and eminently readable exposition of the law was held not only by academic writers but also by the English courts can perhaps best T>e gauged from the extravagant remark by Best J, in Cox v. Troy: "[T]he authority of Pothier... is as high as can be had, next to the decision of a Court of Justice in this country.^1,165 A translation of the first part of Savigny's System dei heutigen ro'mischen Rechts was published only in 1867^{[2945] [2946] and came perhaps too late to exercise an equally profound influence on the development of English contract law.}

(b) The an alysis of con tract

If we look at the formation of contract, most modern textbooks analyse it in terms of offer and acceptance, an intention to create legal relations and the doctrine of consideration. All three requirements appear to be deeply engrained in the English common law. And yet, it is only the doctrine of consideration that has been an integral part of it for a considerable period of time; it evolved, as we have seen, in the 16th century,^[2948] and was closely related to the emergence of the action of assumpsit.

The analysis of contract as a legal transaction formed by offer and acceptance, was superimposed upon the doctrine of consideration in the course of the 19th century by treatise-writers such as Powell and Chitty, Pollock and Anson.^[2949] Essentially, they adopted the civilian doctrine as it had been developed by Grotius and Pufendorf, and as they had found it in Pothier. Judicial recognition came as early as 1818, in the famous case of Adams v. LindseU.^u0

The third of the above-mentioned criteria serves to distinguish legal arrangements from extralegal, merely social ones. If—as was sup­posed—all contractual obligations are the product of the joint wills of the contracting parties, it does not follow—conversely—that every agreement must necessarily be legally enforceable. Whether or not an agreement should have any legal consequences must depend, in turn, on the intention of the parties.

"If people make arrangements to go out for a walk or to read a book together, that is no agreement in a legal sense. Why not? Because their intention is not directed to legal consequences, but merely to extralegal ones; no rights or duties are to be created."^{[2950] [2951]}

Hence the doctrine that a legally binding agreement must be accompanied by a joint intention of the parties to create legal relations.^[2952] Pollock took it over from Savigny,^[2953] but its civilian pedigree dates back, far beyond Pothier and Pufendorf, to the writings of the glossators.^[2954] In Carlill v. Carbolic Smoke Ball Company,^[2955] the new dogma received the stamp of judicial approval.

7.