2. The Roman contribution

(a) Conceptual analysis in general

These are, in barest outline, some of the main features of modern contractual theory. It would be an entirely ahistorical enterprise to try to trace them back to Roman law.

The modern general law of contract has essentially been developed by the natural lawyers, and our conceptual apparatus has thus been devised within the last three centuries.^[2890] But, of course, one did not start de novo; most of the individual parts that were needed for the new doctrinal building could conveniently be taken from the quarry of the Corpus Juris Civilis. All that was needed was a new scheme of putting things together: a coherent rational philosophy as a new basis and source of inspiration for systematic and conceptual clarity. The Roman lawyers did not think in terms of abstract propositions; they developed their law in casuistic fashion. Thus, as far as the voluntary transfer of assets was concerned, they did not look at phenomena such as "contract" or "legal act" as such; they paid attention to specific types of transactions carved out by experience rather than doctrinal thinking. In this manner, they devised transactions characterized by oral formalities, by rei interventio, by an entry into a ledger and by simple consent. The result was an abundant but imperfectly structured casuistry. And yet, their specific legal genius led the Roman lawyers to adjust their rules and precedents in such a manner that the result was not unmanageable chaos. The germs of many of the modern general doctrines were slumbering in the sources.^[2891] Even most of the modern concepts were there, though they were rather diffuse and poorly defined; in addition, they had sometimes undergone considerable change in meaning before they were incorporated into the Corpus Juris Civilis.

(h) Contractus

Thus, first of all, there was the term "contractus".

It is derived from the verb "contrahere" which, at least originally, meant "to contract" (in the sense of, for instance, "to contract a disease"). What one "contracted", in the legal context, was liability—any kind of liability, not only a "contractual" one.^[2892] The substantive contractus, too, was first of all used in the same wide and fairly untechnical sense. Characteristically, it was the law teacher, Gaius, with his systematic interests, who gave the term a narrower meaning and distinguished between obligationes ex delicto and ex contractu.^[2893] Since then contractus was used to identify those transactions that were enforceable according to the ius civile.^[2894] Later on, the innominate real "contracts" came to be included too.^[2895] No generally accepted definition of the term "contract" can be found in our sources.^[2896] ^{^[2897] There is only an "elegant" (in the opinion of Ulpianus) statement of Pedius to the effect that "nullum esse contractum, nullam obligationem, quae non habeat in se conventionem, sive re sive verbis fiat". ¹² (c) Pacta
The counterparts of the contractus were, on the one hand, the delicta and, on the other hand, the pacta. However, the term "pactum" was ambiguous.^[2898] From early on, it referred to a transaction by means of which the person who had committed a delict "bought off" the injured parties' right of seizure. Apart from that, pactum could refer to what has come to be known as pactum de non petendo, an (informal) release agreement. Incidental agreements which could, if added to a contract with a iudicium bonae fidei, be indirectly enforceable, were also termed pacta (adiecta). Finally, and most importantly, pactum (or pactio) was the word used to denote all informal agreements which were not (independently) enforceable ("nuda pactio obligationem non parit").
But with the degeneration of the stipulation and the recognition of an increasing range of enforceable pacta, the distinction between contracts and pacta was, of course, greatly blurred and became more and more meaningless.^[2899] (d) Conventio
Thirdly, then, there was the term "conventio". According to Ulpian this was a "verbum generale... ad omnia pertinens, de quibus negotii contrahendi transigendique causa consentiunt qui inter se agunt'V^[2900] Conventio is derived from "convenire" = "to come together". In the same way as people are able to come together in one place, there can be a coming together of the minds, if two or more people agree on the same thing:
"nam sicuti convenire dicuntur qui ex diversis locis in unum locum colliguntur et veniunt, ita et qui ex diversis animi motibus in unum consentiunt, id est in unam sententia decurrunt."^[2901]
But is conventio really the overarching generic term comprising both contractus and pacta? Or does it merely have a general significance in that it is an indispensable element contained in every pact or contract? The latter is what Pedius seems to imply ("... nullum esse contractum, nullam obligationem, quae non habeat in se conventionem").^[2902] Conventio, in the context of this statement, appears more or less to be a synonym for consensus. In Ulp. D. 50, 12, 3 pr., too, both terms are used very much on the same level ("Pactum est duorum consensus atque conventio").
(e) Consensus
For consensus, in turn, the core concept of the modern law of contract, we do not find a definition or any attempt at a conceptual analysis in the Digest.^[2903] In Ulp. 2, 14, 1, 1 sq. we meet it as definiens, notas definiendum: "Pactum autem a pactione dicitur... et est pactio duorum pluriumve in idem placitum et consensus." Did consensus refer to a subjective attitude of the parties to the contract (voluntas or animus) or rather to the (formal or informal) declarations made by them? Earlier this century attempts have not been wanting to eliminate every subjective notion from classical Roman law^[2904] and, in turn, to dispute the relevance of any objective criteria for post-classical contractual theory.
But these are unacceptable doctrinal exaggerations.^[2905]" True: there was a general tendency (prevalent in other developed legal systems too)^[2906] to "subjectivize" legal relations and to pay attention to the individual will rather than to strict and archetypal behaviour patterns, to move from form to formlessness, from a nearly exclusive emphasis on certainty of law to equity.^[2907] As far as the old liability transactions of pre-classical law were concerned, it did indeed matter only that the form had been complied with. The actual intention of the parties was irrelevant. Already in classical law, however, this situation had changed very considerably. No formal act was needed for the conclusion of consensual contracts; they were based merely on the consent of the parties, and they formed the nucleus around which the modern law of contract was to develop. Admittedly, consensus was not a well-analysed technical term but it did mean, first and foremost, what the English term "consent" is usually also taken to convey: a meeting of the minds, the concurrence of two or more wills, and hence something essentially subjective.^[2908] Of course, the only possible evidence of such intent is external facts, and thus, in order to be legally relevant, the agreement had to manifest itself somehow or other. Even the Byzantine lawyers could not entirely dispense with objective indications. But it is primarily the concurring wishes of the parties concerned that form the main element of contract. That this was so in classical Roman law appears most clearly from the approach adopted by the Roman lawyers towards the problem of error. The fact that a contract did not come into existence in cases where one of the parties had erred with regard to certain essential aspects of it^[2909] amply demonstrates the significance attached to the will of the parties in the formation of a contract. In fact, classical law had already gone one important step further, for it is widely recognized today that consent was not only the basis of "consensual" contracts, but was also an essential element of all other contracts.^[2910] ^{^[2911] Pedius left no doubt about that when he stated that "nullum esse contractum, nullam obligationem, quae non habeat in se conven- tionem, sive re sive verbis fiat: nam et stipulatio quae verbis fit, nisi habeat consensual, nulla est".^12fl
And, indeed, we have already seen in our discussion of stipulation and of mutuum how the "subjective" agreement of the parties increasingly came to be accepted as the cornerstone of and actual effective reason for all contractual obligations.^[2912] This development was already in full progress in classical law, but it was brought to a close by Byzantine jurisprudence.
Their doctrine of volition, based on stoic moral philosophy and on the influence of Christian thinking,^[2913] led to what Kaser has called an "internalization"^[2914] of contractual obligations; every contract was taken to be based on and to derive its obligatory nature from a conventio (consensus), that is, a meeting of the minds. Rei interventio and verborum sollemnitas, where they were insisted upon, were merely additional, formal requirements. It is hardly necessary to mention that pacta, too, were based on consent in the sense discussed.^[2915] 3.}}

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

2. The Roman contribution

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