Ex nudo pacto oritur actio and the notion of causa
The oral formality required for the classical Roman stipulatio had been a convenient way of establishing whether the parties seriously intended to be bound or not. The danger always exists that people will commit themselves rashly and without due consideration; but the question-and- answer ritual with, in particular, the use of a key verb, must have made it abundantly clear to any Roman citizen what he was letting himself in for.
The rule of "ex nudo pacto non oritur actio", from this point of view, served to protect those who were inexperienced or careless in handling their affairs. This, in any event, was the opinion of the late medieval lawyers.[2817] But how under these circumstances could one—particularly the canon lawyers!—justify giving up this rule? The answer to this question is simple: actionability was extended only to those pacta which were seriously intended.[2818] Acceptance of the principle that every lawful agreement begets an action thus carried with it, as a corollary, the introduction of what Zweigert[2819] [2820] has called an indicium of seriousness: a general requirement intended to distinguish serious promises from those which should not be regarded as binding. We have already come across this criterion; Grotius, for instance, referred to it when he said that all "toezegginghen die uit eenighe redelicke oorzaecken geschieden... recht gaven om te eisschen". It is the idea that an agreement, in order to be enforceable, must be shown to be based on a (lawful) cause. This doctrine lives on in several modern legal systems, most notably in French law, where art. 1131 code civil provides that promissory contracts are valid only if they have a cause.[2821] It found its origin in medieval law, which had in turn, as was so often the case, used a few Roman bricks in order to create a totally un-Roman doctrinal edifice.2.
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- CHAPTER IX. THE SLAVE AS MAN. IN COMMERCE. ACTIO DE PECULIO. ACTIO TRIBUTORIA.
- The notion of impossibility under the ins commune
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- Causa as an extra piece of "garment"
- The limits of the notion of "corrumpere"
- Condictio sine causa