MODERN CIVIL LAW
We have seen that the foundation of the Roman system of specific contracts had by the time of Justinian been undermined
1 See below, pp.
227 ff.by the principle, implicit in the degenerate stipulatio, that any agreement, or at least any agreement in writing, was a contract. Justinian’s compilers either did not recognize what had happened or were unwilling to undertake the work of reconstruction, and they therefore left the conflict of principle unresolved. To the medieval and later Civil lawyers this course was not open. The form of the stipulatio, along with the other Roman forms, was dead. The Canon law insisted on the moral principle that agreements should be carried out. The system of specific contracts could not survive. So it is that modern Civil law systems proceed from the premiss that, in effect, any seriously intended agreement is a contract.1 Other fundamental principles have likewise been abandoned. The tangle of technicalities in which the Roman law of agency was caught could not survive the disappearance of the Roman world, and modern Civil law accepts without question the principle of representation. The principle that a third party cannot sue on a contract, even when made expressly in his favour, was longer-lived, but in the last century the needs of modern business, and in particular of insurance, have made great inroads even on this principle.
And yet the law of contract remains one of the most markedly Roman branches of the Civil law. In evolving the principles of their unitary system of contract the Civilians drew heavily on Roman sources and in particular on the very fully worked out law governing the stipulatio.
For, once freed of its form, the stipulatio could be seen as simply the model contract. Moreover the Civil law contrives to enjoy both the advantages of a unitary system of contract and those of a system of typical contracts. For within the framework of the unitary system it still retains, with some modifications, the typical contracts of the Roman law. The existence of these typical contracts no longer of course entails the consequence that an agreement not falling within them is no contract, but it does retain the great advantage of providing for the most usual transactions of life a ready-made set of ‘incidents’.Nor is it only in the Civil law that the influence of the Roman law of contracts has been felt. Even the Common law has here and there made borrowings—in the law governing mistake, for
style='text-indent:18.0pt;line-height:92%'>1 For the doctrine of cause, see Buckland and McNair, Roman Law and Common Law, 2nd edn., pp. 223 ff., 228 if.example, or in the law of sale—though these borrowings have more often been at second hand from the Civilian commentators than directly from the Roman sources.
More on the topic MODERN CIVIL LAW:
- Chapter 8 Codification and the Rise of Modern Civil Law
- Lecture Two— The Transition from Civil Law to Civil Code in Germany: Dawn of a New Era?
- The law of obligations is one of the most significant contributions of Roman law to legal culture, illuminating the civil law tradition more than any other branch of Roman law.
- Mousourakis G.. Roman Law and the Origins of the Civil Law Tradition. Springer,2015. — 339 p., 2015
- MODERN LAW
- Along with contracts, the other significant branch of the law of obligations is that of delicts, i.e., private wrongs for which redress was provided by civil law.
- Roman-Dutch law; modern German law
- The Codification of Civil Law in Germany
- The position in modern law
- Consent as the basis of contract in modern law
- Geographic Distribution of the Civil Law
- CIVIL LAW AND CANON LAW
- 1. Set-ofFin modern law
- CIVIL LAW AND CUSTOM
- Roman-Dutch and modern German law
- The civil law glossators
- The position in modern French and German law
- THE CIVIL LAW BECOMES A SCIENCE
- Donation under the ius commune and in modern law