The evolution of the modern contract in favour of a third party
(a) Alteri stipulari nemo potest: rule and exceptions
It took a long time before the "alteri stipulari nemo potest" principle was finally overcome; this principle, incidentally, was taken to prohibit what we today call genuine contracts in favour of a third party, non- genuine contracts in favour of a third party and (direct) representation—i.e.
every contract which would either aim at creating rights, or rights and obligations, in the person of a third party, or bind one of the contracting parties to perform in favour of the third. Some authors extended the application of C. 8, 54, 3 and used this constitution as a crystallization point for rules about stipulationes alteri.[185] Others availed themselves of the transformative potential inherent in the "interest" concept.[186] By accepting more and more liberally an interest of the creditor in the conclusion of such a contract, the rule against (non-genuine) contracts in favour of third parties could be totally eroded. Thus we find Gothofredus categorically stating "[Hjominem beneficio adfici nostra interest".[187] Other writers, again, argued that all the exceptions already recognized in Roman law negated the rule.[188] Savigny saw the solution to the problem largely in an extensive application of unauthorized agency.[189] The glossator Martinus Gosia, one of the famous quattuor doctores, maintained that "alteri stipulari nemo potest" referred only to the actio directa and did not prevent the third party from acquiring an actio utilis.[190] According to the commentators, the principle did not apply to "personae publicae" such as notarii or indices.[191] [192] [193] The canonists recognized an interesting exception in cases where the promise in favour of a third party had been affirmed by oath: if the promise had to be regarded as invalid, perjury (which meant sin) would have been sanctioned.51 And some influential Spanish writers (such as Antonio Gomez and Covarruvias)52 argued that alteri stipulari nemo potest had been rendered practically obsolete as a result of the widespread recognition of "ex nudo pacto oritur actio":[194] for even if a stipulation in favour of a third party might have to be regarded as invalid,[195] an informal pactum to the same effect did not incur objections.[196] Generally, however, until the 17th century and partially even until the end of the 19th century, the "alteri stipulari nemo potest" rule was reaffirmed and applied—be it out of reverence for the sources of Roman law,[197] be it because a stipulatio alteri was regarded as a logical impossibility[198] or as irreconcilable with the nature of stipulations, [199]or be it that no specific need for agreements in favour of third parties was recognized: under these circumstances, and in view of the fact that obligations constituted limitations on the natural freedom, it was not regarded as justifiable to grant recognition to this kind of transaction.[200] At the height of pandectism, Alois Brinz, in his famous textbook, still tried to reconcile the Justinianic exceptions with the "alteri stipulari nemo potest" principle in order to prove both its logical stringency and its historical significance.[201](b) The abandonmen t of the rule
But these attempts were hardly more than the last thunderings of a lost battle.
In the 17th century the great breakthrough towards the recognition of the contract in favour of a third party had taken place and the prevailing new attitude had already influenced many of the codes of that time. In contrast to the contemporary lawyers in Italy, France and Germany, the "elegant" jurisprudence in the Netherlands had turned away from the Roman principle of "alteri stipulari nemo potest".[202] [203] This move was possibly indirectly influenced by a law of King Alfons XI of Spain from 1348,62 but it was mainly based on the needs and usages of the rapidly expanding Dutch economy. One of the first to take the "consuetudo" into account was Johannes Jacob Wisseiibach, who stated the Roman rule and then continued:"Et moribus hodierms vel paciscendo, vol legem dicendo, vel stipulando alter alteri cavere potest... Neque id rniruni videri debet. Nam roganti, quare jure Civili alteri stipulari nemo possit, vix aliam dedens rationem, in quo acquiescat, quam banc, quia ita legislatori placuit... Mores ergo id Romanoruni placituni, facile subigere poterant.'"13
A couple of years later, Simon van Leeuwen had this to say in his Censura Forensis about bills of exchange: "Nostris autem vicinisque regionibus, praesertim inter mercatores nihil frequentius quam quod in litterarum obligationibus, non modo sibi aut alteri, sed in genere cuicunque literatum latori valide stipuletur."[204] [205] However, the frontal attack on "alteri stipulari nemo potest" was launched by the natural lawyers, led by Hugo Grotius. Significantly,[206] in his Inleiding tos de Hollandsche Rechtsgeleertheyd, Grotius had still stated that "niemand door een ander inschuld bekomen [kan] zonder opdracht".[207] It was only in his De Jure Belli ac Pads that he asserted the incompatibility of "alteri stipulari nemo potest" with natural law: "Si mihi facta est promissio, orrnssa Inspectione an mea privatim intersit, quam introduxit ms Romanuma, naturaliter videtur mihi acceptandi itis dari efficendi ut ad alterum ius perveniat, si et is acceptee.... The recognition of the contract in favour of a third party thus came as a consequence of the emphasis which Grotius put on will and consensus as essential elements of the contract.[209] [210] [211] Another consequence, however, is the specific limitation of this construction which lies in the fact that the third party does not (directly) acquire a right under the contract between the other two, but that a declaration is required to accept the benefit. Strictly speaking, therefore, the right of the third party arises from a vinculum iuris between himself and the promisor. The situation is thus not dissimilar from what we arc accustomed to call unauthorized agency.69 It was in this form that the contract in favour of a third party made its way into the Prussian,70 Bavarian,[212] and Saxonian[213] codifications. The Austrian code was more conservative in this respect and retained the "alten stipulari nemo potest" principle.[214] So did, under the influence of Robert-Joseph Pothier,[215] the French code civil.[216] [217] It made provision for only two narrowly defined exceptions in art. 1121: a "stipulation an profit d'un tiers" is valid, "lorsque telle est la condition d'une stipulation que I'on fait pour soi-meme on d'une donation que I'on fait a un autre. "70 The Roman idea of the actionable interest necessary for a valid stipulation (Ulp. D. 45, 1, 38, 17), as well as the donatio sub modo in C. 8, 54, 3 are clearly evident in this provision. The French courts have, however, regarded the first alternative (namely that the contract must not only be for the benefit of the third party but that there must be a simultaneous promise for the benefit of the promisee) as being satisfied if the promisee derives any "profit moral" from the transaction.[218] Thus, they have unhinged the principle of art. 1165 and introduced into French law — contra legem, as it were—the modern contract in favour of third parties. According to the "theorie de la creation directe de Taction" the third party acquires the right directly at the time when promisor and promisee conclude their contract; his own declaration does not have a constitutive effect. This has brought French law into line with modern German law; the "mature"[219] solutions found in 328 sqq., providing, inter alia, for life insurance contracts and farm surrender agreements, are due to the conceptual clarity achieved by the pandectists.[220] Grotius' construction, on the other hand, lives on to this day in the modern Roman-Dutch law of South Africa.[221] (c) Privity of contract All in all, the civil-law systems seem more or less to have thrown off the fetters of the Roman "alteri stipulari nemo potest" principle.[222] If, therefore, one wants to name a legal system that to this day quite obstinately conceives of contractual obligations as necessarily bilateral "vincula iuris", in a way which is very unabstract and similar to the Roman view, one has to look at the English common law.[223] There, in the «words of Viscount Haldane LC, "certain principles are fundamental. One is that only a person who is a party to a contract can sue on it. Our law knows nothing of a ius quaesitum tertio arising by way of contract'1.[224] This rule is usuallyjustified by reference to the doctrines of "privity of contract" and "consideration" (consideration must move from the promisee). However, again not unlike their Roman counterparts, English lawyers have not been able altogether to ignore the practical need for allowing third parties to sue and have, therefore, in some cases found other means of achieving this end. More particularly, trust constructions (usually of a more or less fictitious nature) have been employed in this context.[225] II.
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