The decline of causa

By the time of the usus modernus pandectarum, causa had played out its historically most important role: namely that of facilitating the transition from a closed shop of (enforceable) pacta vestita to the principle of modern law that every agreement begets an action.^[2844] ^{^[2845] That a contract, in order to be valid, must have been seriously intended by the parties is a matter of course.}

One does not really need causa as an independent requirement to call attention to this trivial point. Thus, amongst the German authors of the 17th and 18th centuries, both the term and the idea of a causa disappeared from the definition of contract, and the problem of whether the parties had indeed seriously and deliberately entered legal relations was shifted into the field of procedure and evidence. In France and Italy a causa continued to be required as an element essential for the validity of contracts. "Tout engagement doit avoir une cause honnete" said Pothier,^[2846] and from here, as usual, the principle filtered through into the code civil. But it has been questioned, time and again, whether this "conceptual hippogriff"^[2847] serves a specific and indispensable function in the law of contract.^[2848] If it is correct that the term "causa" simply refers to the content of the contract as a whole,^[2849] it might just as well be jettisoned. For then there is no difference between, for instance, a statement to the effect that an unlawful contract is void and—this is what the code civil actually declares⁵⁰—that a contract without lawful cause is void.

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

The decline of causa

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