Pacta vestita and pacta nuda

How could all this be brought into a rational scheme? The glossators, first of all, tried to achieve some terminological clarity.^[2773] They proceeded from the definition given by Ulpianus ("Pactum...

est pactio duorum pluriumve in idem placitum et consensus")^[2774] but specified that the parties had to have agreed "in idem dandum vel, faciendum".^[2775] Thus for them "pactum" was the general term comprising all agreements between two or more parties aimed at creating obligations.^[2776] Depending on whether these obligations were merely natural or whether they were enforceable, a distinction was drawn between pacta nuda and pacta vestita (literally: pacts which are clothed). As a result, the Roman contracts now fell into the group of pacta vestita: "Vestitur autem pactum sex modis: re, verbis, consensu, literis, contractus cohaerentia, rei interventu."^[2777] ⁴ The first four garments were obviously taken from Gaius* classification of contracts,^[2778] the last two refer to the pacta adiecta^[2779] and the innominate real contracts. Accursius added the vestimentum legis auxilio ("Sed quando ex nudo pacto datur actio: potest dici vestitum legis auxilio"),^[2780] thus moving the pacta praetoria and legitima from the increasingly uncomfortable area of (irregular) pacta nuda¹⁹⁸ into the already rather densely populated haven of the pacta vestita. It was obvious from this system that pacta vestita were now very much the rule; the few remaining unenforceable pacta nuda appeared as something of an anomaly; and seeing that vestments were available so liberally, they were bound, sooner or later, to find a charitable champion who was prepared to save them too from the chill of death.

As far as contractual theory is concerned, recognition of this process took its time.

Too imposing was the authority of the Roman principle of "nuda pactio obligationem non parit". That the French humanists, for instance, should have been inclined to abandon it, was not to be expected.²⁰⁰ But it continued to be asserted until well into the 17th century, though more and more sporadically. Simon van Leeuwen, for instance, leaves no doubt:

"Quae nuda Conventio seu pactum nudum, licet revera et proprie pactum sit, et quam maxime serio et deliberate) animo ineatur, earn tamen vim non habet, ut ex eo actio detur. Hine vulgaris regula: Ex nudo pacto non datur actio."

And he adds: "Quod et in praxi est receptum."²⁰¹ But this is demonstrably wrong. Nearly all the other contemporary Roman- Dutch writers concede that, whatever the position in Roman law might have been, "moribus hodiernis" or "consuetudine nostra" nuda pacta were regarded as enforceable.²⁰² From about the 18th century onwards, this was no longer disputed.²⁰³ "Ex nudo pacto oritur actio" was and

^ISS "... nisi mirabiliter hoc in quibusdam casibus accidat, in quibus casibus nudum pactum parit actionem: ut in donatione": Azo, Summa Codicis, Lib. II, Rubrica De Pactis, 14.

Azo’s vivid description of the way in which pacta adiecta and innominate real contracts become clothed is quoted by Riccobono/Kerr Wylie/Beinart, p. 10; it fully exploits the garment metaphor: "... sed cum natum est ante et retro aspicit et oculis aperit an praecesserit vel sequt possit vel statim insit aliquis contractus cuius variis et grisiis pennis seu vestibus induatur; ut boream rabriemque procellae expellat; et suum suo domino in agendo auxilium praebeat."

Cf. e.g. Franciscus Duarenus, Franciscus Connanus, jacobus Cujacius and Hugo Donellus, as discussed by Seuffert, op. cit., note 31, pp. 108 sqq.; Nanz, Vertragsbegriff, pp. 65 sqq. But cf. also already Carolus Molinaeus, "Commentarius in Codicem", Lib.

II, Tit. Ill, in: Opera Omnia (Parisiis, 1681), vol. HL

Centura Forensis, Pars I, Lib. IV, Cap. II, n. 2.

Cf. e.g. Voet, Commentarius ad Pandectas, Lib. II, Tit. XIV, IX; Groenewegen, Tractatus de legibus abrogatis, Cod. Lib. II, Tit. Ill, 1. 10 legem; Vinnius, "Tractatus de pactis", in: idem, Tractatus quatuor (Lugduni 1748), Cap. VII, 6; cf. further Coenraad Visser, "The Principle pacta servanda sunt in Roman and Roman-Dutch Law, With Specific Reference to Contracts in Restraint of Trade", (1984) 101 SAL) 652 sqq.; Joubert, Contract, pp. 27 sqq. and, particularly, Nanz, Vertragsbegriff, pp. 95 sqq.

Cf. e.g. Samuel Stryk, Usus modernus pandectarum, Lib. II, Tit. XIV, § 1; Gluck, vol. 4, pp. 279 sqq.; Pothier, Tratte des obligations, n. 3; Windscheid/Kipp, § 312; Seuffert, op. cit., note 31, pp. 130 sqq. The first and most influential writer of the usus modernus pandectarum to assert this principle was Matthaeus Wesenbecius (1531-86); cf. the quotation given in note 23 1 infra. Most of the writers of the 17th century referred to him. On Wesenbecius' significance for the development of a general law of contract, see Nanz, Vertragsbegriff, pp. 85 sqq. remained the general rule, or, as it was also often expressed: "pacta sunt servanda"²⁰⁴—(all) pacts have to be honoured.²⁰⁵

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

Pacta vestita and pacta nuda

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