The position of the natural lawyers; summary
As usually happened in cases where the tide of opinion over the centuries had been flowing increasingly strongly against a particular principle of Roman law, the final breakthrough on a doctrinal level was brought about by the natural lawyers.
According to Grotius, the "father" of the modern conception of natural law, fides forms the basis of justice.[2797] Hence, promises must be kept, whether they have been couched in a specific form or not. Even God would be acting against his nature were he not to keep his word.[2798] From there it follows that all pacta must be binding. The supreme importance of this principle comes out well in Pufendorf s epochal work on the law of nature and of nations. "Si quae autem inter homines ineuntur pacta, ilia sancte observanda esse, sociabilis natura hominum requirit", he writes, and concludes:"Igitur religiosissimum juris naturalis praeceptum, et quod universae humanae vitae decus, modum atque rationem temperat, habetur: Ut quilibet fidem datam servet, seu promissa atque pacta expleat."[2799]
Thus, to the natural lawyers, contract was the essential tool for the regulation of human affairs, the cornerstone of all the institutions of the positive law[2800] (including, incidentally, the State—the famous naturallaw theory of the "contrat social").
All in all, then, the final establishment of a general law of contract based on consensus was the result of a long process, to which a whole variety of factors contributed. That contemporary writers realized the complexity of this process emerges very clearly from a passage of Augustin Leyser's Meditationes ad Pandectas, with which we may conclude this chapter:
"Unde vero pacta nuda hodie vim obligandi acdpiant, de ea non una Jurisconsultorum sententia est. Alii earn ex iure naturae derivant, atque rem hanc ad simplicitatem naturalem reductam dicerunt. Alii ad ius canonicum provocant.... Alii denique mores veteres Germanicos, quibus omnes pactiones vatidae sunt... mansisse perpetuum nee luris Romani receptione hac in parte interruptos fuisse perhibent. Sed parum interest, utrum subtilitatem luris Romani hac in parte iure naturali, an Germanico antiquo an canonico vinci dicas. Victa certe est et omnia pacta consensu perfecta vim eandem habent quam stipulationes."238
Spec. XXXIX, V.
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