The contribution of (commercial) practice
What were the decisive forces behind this change of attitude? First of all, in actual practice the rule of "nuda pactio obligationem non parit" began to be eroded virtually as soon as it had been resurrected from the pages of the Digest.206 Already by the end of the Middle Ages, every informal agreement had, for all practical purposes, become legally binding.207 The international lex Mercatoria was of considerable importance in this respect:
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in curia mercatorum, ubi de negotio potest decidi bona aequitate... non potest opponi ista exceptio, non intervenit stipulatio, sed pactum nudum fuit", to quote the words of Bartolus;208 the fact that the formalities of a stipulation had not been observed could not be raised against a pactum nudum. The consequence was spelt out clearly by Bartolus' pupil Baldus: "Ex pacto etiam nudo agunt mercatores, et numularii inter se....*'209 In the states founded by the Crusaders "outremer" the maxim "convenant vainc hi" was applied;210 it is based on a generalization of Ulp. D. 50, 17, 23 ("legem enim contractus dedit") and influenced, in turn (post-humanistic) contractual theory in France down to the code civil {"Les conventions Ugalementformees dement lieu de hi a ceux qui les ont faites": art. 1134).-11 In the medieval French and Italian "pratique coutumier", too, consensualism seems to have gained2(14 For the origin of this maxim cf. infra, pp. 543, 576.
2the feudal nobility in particular felt (honour-jbound to observe informal "convenientia" or "convenances" ("toutes convenances sont a tenir";[2782] the terminology is derived from the Latin word "conventio", as used especially in Ulp. D. 2, 14, 1, 3).[2783] Since the 17th century, the acceptance in practice of "ex nudo pacto oritur actio" has repeatedly been traced back to and justified as being in accordance with old Germanic customary law: "At inter Germanos, quibus sancta semper fides fuit, et verba dare ignotum aliud [sc: quam inter Romanos] ab antique» [fuit] servatum"2 [2784] or: "Maer gelijck de Duitschen van alie oude tijden gheen deugd en hebben geacht boven de trouwe, zoo en is by de zelve... verstaen ende gebruickt, dat alie toezegginghen... door wat woorden het zoude mogen zijn... rccht gaven om te eisschen."[2785] 6 Both these texts allude to a famous passage in Tacitus' Germania, where the author muses on the stubborn determination with which the Germans honour gambling debts[2786] and comments, somewhat unap- preciatively: "ipsi fidem vocant." The old Germanic saying "one man one man, one word one word" has also often been referred to,[2787] though entirely out of context.[2788] Sources which could substantiate the argument are extremely scarce; a passage in the Stadrecht of Freiburg im Breisgau of 1520 ("Wer bedechtlich zusagt, der sol es halten") is (possibly) the only evidence that the idea of consensuality was recognized in Germany prior to the reception of Roman law.220 4.
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