1. The dynamic nature of Western contract law

"Roman law", wrote one of the great masters of comparative law,^[3646]

"is really very remarkable. Most early laws devote most of their attention to the static elements, especially problems of kinship and marriage and of crime; and they are composed mainly of prohibitions.

But the element of tabu, which is so strong in them, is hardly visible in Roman law. Changes are regarded as normal, to be provided for by the appropriate legal instruments."

The most important of these instruments was contract, and it was largely the law of contract that gave the civilian legal tradition its peculiarly dynamic character.

"Primitive and archaic law is a law of empirically known, psychologically sensed wrongs rather than theoretically conceived rights and duties.... These legal systems were therefore static and past oriented, since they dealt basically with wrongs and compensation, that is, the restitution as far as possible of a previously existing situation which had been wrongfully disturbed. Classical Roman and modern law, on the other hand, is future oriented and a law of movement concerned with the creation, transfer, and extinction of legal relations and prediction of this future movement."^[3647]

Yet, even contract law contains, of course, inherently "static" attributes. Once the parties have complied with whatever may be required for the conclusion of a contract, they are bound. "Pacta sunt servanda", as one was to say at a time when all consensual pacta had become enforceable and the formalities connected with the Roman allround contract, the stipulation, had been jettisoned.^[3648] The law of contract thus provides the parties with a convenient tool to change their existing position; but it must also be concerned with the protection of reasonable expectations. A party to a contract may therefore, to his dismay, find himself bound, even though events have not taken the expected turn.

Roman law, in principle, did not allow him to rescind the contract.^[3649] ^{^[3650] At the same time, however, it recognized special devices by means of which the parties could adapt their transaction, in advance, to certain developments which still lay somewhere in the future. Depending on whether they wanted to make the existence of the obligations, created by their contract, dependent upon a future certain event, or a future uncertain event, the parties could include a time clause or condition. These provisions introduced a greater degree of flexibility into the contract, without at the same time jeopardizing legal certainty: since they were part and parcel of the contract, both parties could adjust their expectations accordingly. Conditions, in particular, have always proved to be a most useful device, in Roman law even more so than in modern legal systems. Stipulations, it must be remembered, were unilaterally binding contracts; but by adding a condition, they could easily be adapted to serve the function of bilateral transactions such as hire, sale or permutatio.⁵ Conditions could be employed in many different contexts and for a great variety of purposes; we have already referred to some of them in previous chapters.^[3651] The Roman lawyers devoted great attention to the problems arising from conditional transactions and the rich casuistry elaborating on them belongs to the showpieces of the Roman law of obligations. Modern legal systems, by and large, have not been able to add very much by way of doctrinal refinement.^[3652] 2.}

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

1. The dynamic nature of Western contract law

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