We saw in the last lecture how difficult societies found it to rise to the concept of an agreement or contract. All rights and duties derive from a state that has come into being of things or of persons; but in the contract proper, it is a state simply conceived and not yet in being that lies at the root of the obligation. Nothing has been acquired or given except a declaration of will. How is it possible for such a declaration to bind the will from which it springs? Should we say that in the contract there are two wills concerned and that they bind each other mutually in some way; that they have become bound up together in some fashion and that this association does not leave them wholly free? But how can the promise made by the other contracting party to fulfil certain terms of performance—if on my part I fulfil certain other terms of performance—compel me to honour my promise and vice versa? It is not because the other has pledged himself towards me that my undertaking towards him is binding in greater or lesser degree. The one undertaking is not of a different nature from the other; and if neither has in itself the moral authority to compel the will, it will not be got by their agreeing. Moreover, in order that there shall be a contract, there is no need for an undertaking of reciprocal performance. There may also be unilateral contracts. For instance, deeds of gift and contracts under guarantee do not involve any exchange. If, in a case of this kind, I declare that I will give a certain sum or some object to a certain given person, I am bound to carry out my promise although I have received nothing in exchange. Therefore in this case it is solely the declaration of my will, without any reciprocal declaration, that binds me. How does it come to have this particular force?
It was only by very slow degrees that the people of various nations reached the point of endowing this demonstration of will alone with such force, both moral and juridical. When exchanges or transfers of property became more frequent and a need for contractual relations began to make itself felt, expedients were arrived at to meet this need. Without founding a new right, an attempt was made to adapt the statutory right to these new demands. This was the principle adopted. As soon as the parties were in agreement, a state or condition of things or of persons was brought into being, which carried further obligations in its train. For instance, one of the contracting parties would carry out the terms of the performance he had undertaken. Henceforward, there was something acquired and established that bound the other party. The vendor delivered the thing; the thing, which in this case passed into the patrimony of the purchaser, put an obligation upon him to fulfil his part: this was by virtue of the principle—everywhere accepted but differently observed by various societies—that no one may enrich himself at the expense of another. Or, it might be that once the terms of agreement were settled, the contracting parties submitted themselves to a process that created a kind of kinship sui generis between them; this acquired kinship then introduced between the two a whole system of rights and duties.
By these two processes, a change was introduced in the statutory right in consequence of an agreement of wills, and the bonds made come to have a contractual character. But these bonds are not the product of the agreement of wills, and in this respect there is still no true contract. In the two cases, the consent of itself has no power to compel; at least, it produces no rights, except through an intermediary. It is a state, acquired by things or by persons, following upon the understanding but without any intermediary, that causes the understanding to have juridical effects. As long as the performance has not been carried out, at least in part, and as long as the contracting parties have not mingled their blood or have not sat at the same table, they remain free to revoke their decision. Thus, the declaration of the will by itself alone is devoid of any efficacy. The statutory right has been used to achieve almost the effects of the contractual right but this right has so far still not come into existence.
There is, however, another way in which men succeeded in getting nearer to it. Whatever the process, the wills can bind themselves only on condition of declaring themselves exteriorly, of projecting themselves outwardly. They have to become known, so that the society may attach a moral significance to them. This declaration or outward manifestation is done by the aid of words. Now, there is something in words that is real, natural and living, something that can be endowed with a sacred force thanks to which, once pronounced, they should have the power to bind and compel those who pronounce them. It is enough for them to be uttered according to a certain ritual form and in certain ritual conditions. Henceforward, they become sacred. We can well imagine that words, once they have assumed this sacred quality, impose respect on those who have uttered them. They carry the same prestige as those persons and things which are themselves the object of rights and duties. They too, therefore, may be a source of obligations. One means of conferring this quality on them and hence this binding force, is the oath or invocation of a divine being. By this invocation, this being becomes the guarantor of the promises made or exchanged: he is present and communicates to them something of himself and of the sentiments he inspires. To fail in this is to offend, to be exposed to his vengeance, that is, to sacred penalties which seem to the believers as certain and inevitable as those later to be imposed by the tribunals. In these circumstances, once the words have left the lips of the contracting party, they are no longer his own, they have become something exterior to him, for they have changed in nature. They are sacred and he is profane. In consequence, they are beyond his free-will: although they come from him, they are no longer dependent on him. He can no longer change them and he is bound to carry them out. The oath, too, is a means of communicating to words, that is, to the direct manifestations of the human will, the kind of transcendence we see in all moral things. Also, it separates the words, as it were, from the person who utters them and makes something new of them, which is then imposed on the speaker.
Such, then, certainly seems to be the origin of contracts made in all due and solemn formality. One of their features is that they are not valid unless certain agreed formulas have been pronounced. This cannot be evaded: otherwise the contract has no binding force. An essential feature of magic and sacred formulas can be recognized by this sign. When certain definite words, arranged in a given sequence, are held to have a force which is lost if the slightest change is introduced, we can be sure that they have or have had a sacred meaning and that they derive their peculiar powers from a sacred source. For it is only the sacred phrase that has this effect upon men and things. Juridical formalism is only a substitute for sacred formalities and rites.
As far as the Germanic tribes were concerned, the word used to describe the act of making a solemn contract is adhramire or arramire which is translated by: fidem jurejurendo facere. Elsewhere we find it combined with the sacramentum: “Sacramenta quae ad palatium fuerunt adramita.” Adhramire is to make a solemn promise on oath. It is extremely likely that in the beginning the Roman stipulatio had the same character. It is a contract made verbis, that is, by established formulas. Anyone knowing to what degree Roman law was in principle a sacred and pontifical thing, will have little doubt that these verba were at first ritual formulas intended to give a sacred character to the undertaking. It is certain they were pronounced in the presence of priests and possibly on sacred ground. Were not solemn words, moreover, called sacramental words?
It is probable that very often, if not always, the verbal ritual did not suffice to sanctify the words exchanged and make them irrevocable; manual rites were also employed. Such was the origin most likely of the denier à Dieu (the Lord’s pence or gratuity). This was a coin that one of those contracting gave to the other once the bargain was clinched. It was not an instalment, or earnest-money, on the price, a kind of arles or pledge, for it was an extra payment provided by one of the parties which was not charged to the sum finally paid. It does not therefore seem possible to read into it a fulfilment in part such as we see in real contracts. It must have a meaning. As a rule, it was used in religious practices and this is shown in its name: denier à Dieu. Might it not be a survival, rather, of some offering intended to interest the deity in the contract in some way, to make him party to the arrangement? This seems quite as effective a way of invoking him as the spoken word and thus, of giving sanction to the undertaking proposed.
The same probably applies to the ritual attached to the straw stalk. In the last lecture we seemed to see in this rite a survival of the real contract. We were mistaken, however. There is in fact no reason to believe that it is any less ancient than the real contract and hence there is no evidence to show it derives from that particular form. Another fact against associating the two is that the straw stalk or festuca, the delivery of which sanctified the bond contracted, was handed over, not by the future creditor, but by the future debtor. It was not, then, like the handing over in the real contract, a performance completed, in full or in part, since the performance on the part of the debtor still remained to be carried out in full. Such a procedure could not have the effect of binding the creditor to the debtor but rather of binding the debtor to the creditor. Finally, the solemn contract of the Romans that was made verbis, that is, by means of hallowed formulas, bore the name stipulatio. Now the word stipulatio comes from stipula, also meaning the straw stalk. And “Veteres, quando sibi aliquid promettebant, stipulam tenentes frangebant.” The stipula remained in popular use up to fairly recent times. This means that it had a close connexion with the solemn verbal contract. The two procedures seem inseparable. It is difficult to tell the exact meaning of this ritual. Evidently it signified a kind of liege homage or tribute by the debtor to the creditor, binding on the debtor. This made something of the legal identity of the debtor pass to the creditor, that is, some part of his rights. What makes me think that this is the true explanation is the nature of the procedure that took its place in the Middle Ages that succeeded that early period. The festuca indeed hardly survived the Frankish epoch. A gesture of the hand took its place. When it was a matter of an undertaking that had to be given towards some particular person, the future debtor placed his hands in those of the creditor. Where a unilateral promise alone was concerned or the affirmation of an oath (an affidavit), the hand was placed on holy relics or raised (was it to call heaven as witness?). We can appreciate the sacred, not to say the mystic character of these gestures, since they are still sometimes used, even in our own day; at any rate there is no doubt that their purpose was to create a bond. We are especially aware of this in two kinds of contract of primary importance. First, the feudal contract that bound the man to his lord. To plight his troth and homage, the man knelt and put his hands in those of his lord, promising fealty. The same practice is to be found in the contract of betrothal. Those betrothed engaged to marry by joining their hands and the ritual of Catholic marriage still has the traces of this. We know too that the contract of betrothal was binding.
We are no longer able to say precisely what the religious beliefs were that lay at the root of these practices. Some general indications do, however, come out of these comparisons. The laying on or joining of hands is a substitute for the handing over of the festuca; both therefore have the same meaning and the same purpose. The laying on of hands at any rate is very well known. It has been used in all religions. When it is a question of blessing or consecrating any object, the priest places his hands upon it. When it is a matter of the individual shedding his sins, he places his hand on the victims he is about to sacrifice. Whatever there is base or sinful in him and in his personality leaves him and is communicated to the beast and destroyed with it. It is by a process of the same sort, in another instance, that the victim offered up to do homage to some deity, becomes the substitute for the person who sacrifices it or has it sacrificed. Thus, the personality—either as a whole or in some particular part—appeared to men’s minds to have the quality of something communicated or communicable. And clearly, the function of these rituals was to bring about communications of this kind. It is true that when we examine them against our ideas of the present day, we are inclined to see only symbols, and ways of giving allegorical form to the bonds contracted. But as a rule customs never assume a symbolic character in the beginning; the symbolism represents only a decadence that comes when the primary meaning of the custom is lost. Customs begin by being active causes, and not symbols, of social relations; they bring these relations into existence and it is not until later that they decline into being mere external and material indications. The transfer lying at the base of the real contract is known to be a real transfer and it is this that makes the contract and gives it its binding force. It is much later that it becomes simply a means of giving material proof of the existence of the contract. The same thing applies to the customs we have just examined. We are justified in relating these to the blood covenant. They, also, have the effect of binding the contracting parties by taking on their moral personality. It may be that the hand-shake (Handschlag) has the same origin.
Contracts of this kind, then, are made up of two elements: a verbal nucleus, which is the formula, and the outward ritual. As such, they are already nearer to the true contract than to the real contract. True, there must still be intermediary processes for the consent to have effects in law, but even so the wills concerned are bound direct by these very processes. In fact, these intercalated processes do not consist of actual performance, even in part, of what the contract sets out to do. Whatever the solemn ritual employed, the undertakings entered into by the two parties remain to be carried out in full, even after the rites have been observed. On both sides there are only promises and yet these promises commit the two contracting parties. This is not so with the real contract, since one of the two parties has already carried out his promise wholly or in part—that is, one of the two wills concerned is no longer in a state of willing, since it has reached its object. It is true that the blood covenant had the same advantage. It is easy to see, however, that this unusually complex ritual could only serve for great occasions and not for the small affairs of everyday life. It could not be used to ratify day-to-day sales and purchases. It was hardly ever used except to create some permanent association.
The contract with solemn ritual lent itself easily to the advance that was to come about in the course of time. The outward ritual forming its cloak, as it were, tended by degrees to wear thin and disappear. In Rome, these advances came about as early as the classical era. The outward formalities of the stipulatio had become no more than an echo from times past; only scholars find traces of them in customs of the people and current traditions, or in the derivation of the word. But they were no longer indispensable for the stipulatio to be valid. It consisted exclusively of the sanctified formula that the two contracting parties had to pronounce with religious punctilio. The same phenomenon appeared in modern societies under the influence of Christianity. The Church tended more and more to make the oath the necessary and adequate condition of a contract, without further formality. Thus, the intermediary process between the agreement of the wills and the obligation to translate this agreement into fact went on shrinking. Since words are the direct expression of the will, there remained—as conditions exterior to the consent itself—no more than the clearly defined character of the formula in which this consent had to be expressed, and the particular force and qualities attaching to this formula. When this force reached vanishing point, and as a result there was no longer any insistent requirement as to the verbal form used by those contracting, then the contract proper, the consensual contract had arrived.
That is the fourth stage of this development. How then was the point reached when the contract was rid of this last extraneous and casual element? Several factors contributed to this result.
First, when exchanges in trade greatly increased in number and kind, it became difficult to keep up the practice of the solemn contract with its hampering formalities. New trading relations were set up by means of contract, which the stereotype formulas hallowed by tradition did not fit in with. The processes of law themselves had to become more flexible to conform to the social life. When sales and purchases were going on all the time, when there was never an instant that trade was at a standstill, it was not feasible to require every buyer and every seller to take an oath or have recourse to certain formulas laid down, and so on. … The day-to-day character, and continuity of these relations inevitably excluded all solemn ritual, and it was quite natural to seek means to lessen or lighten the formalities and even to do away with them. But this explanation is not enough. Because these means were needed, it did not follow that they were to be found. Let us see how they appeared to the public mind at the time they were found to be necessary. The mere fact that an institution is required does not mean it will appear at a given moment out of the void. There must be something to make it of, that is, current ideas must allow it to come about and existing institutions must not oppose it but, rather, supply the material needed to shape it. So it was not enough for the consensual contract to be demanded by the advance of economic life: the public mind, too, had to be ready to conceive it as possible. Until then, it had seemed that contractual obligations could only come about by prescribed ritual or by the actual transfer of the thing. Now, a change had to be made in the region of ideas, that would allow of their having a different start. That is how the last stage in these changes was brought about.
What was it that from the outset ran counter to the notion of the consensual contract? It was the principle that any obligation under the law could only have its origin, it seemed, in a state in being of things or of persons. In itself, this principle is irrefutable. Every right has a raison d’être and this can only lie in some clearly defined thing, that is, in an established fact. But is it impossible for mere declarations of will to satisfy this requirement? In no wise. It is true they cannot fulfil this condition if the will that has been asserted remains free to retract. For then the will would not amount to an established fact, since it could not be known in which direction it would finally manifest itself; nor could we say with any assurance what it was or what it might become. Therefore, nothing definite could result from it and no right could derive from it. But let us suppose that the will of the contracting party is asserted in such a way that it could not retract. In that case it will possess all the characteristics of the established fact, a fact in being and able to bring about consequences of the same kind, since it is irrevocable. I may engage to sell or lend to you a certain object, and on such terms that once the undertaking is made I have no longer the right or means to break it. If I do this, I arouse in you by this very action a state of mind equally decided and in line with the certainty you are justified in assuming about my action. You count, and legitimately so, on the promised performance. You have a right to consider it as about to take place, and you act or may act in consequence of this. You may make a certain decision or decide on a certain sale or purchase, by reason of this legitimate certainty. If I then suddenly withdraw and deprive you of this certainty, I throw you out just as seriously as if I had withdrawn after delivery of the thing I had assigned to you in making a real contract with you; I bring about a change in your established position and I render any transactions you may have engaged in on the good faith of the given word, ineffectual. We begin to see, too, morals ranged against this unjustified wrong.
Now, in the solemn contract, the condition we have discussed is fulfilled; the irrevocability of the will is made certain. It is the solemn ritual nature of the undertaking that gives it this characteristic, by sanctifying it and by making of it something that no longer depends on myself, although proceeding from me. The other party is thus justified in counting on my word—and vice versa, if the contract imposes mutual obligations. He has morally and legally the right to consider the promise as inevitably about to be kept. If, then, I fail in this, I am transgressing two duties at once: (1) I am committing sacrilege, because I am breaking an oath, I am profaning a sacred thing, I am committing an act forbidden by religion, and I am trespassing on the region of sacred things. (2) I am disturbing another in his possession, just as if I were a neighbour on his land; I am injuring him, or there is a danger of it. From the very moment the right of the individual is properly respected, that individual shall not be done any unmerited wrong. Thus, in a solemn contract, the formal bond that ties the contracting parties is a twofold one: I am bound by my oath to the deities; I have an obligation to them to fulfil my promise. But I am also bound towards a fellow-man, because my oath, by detaching my word and exteriorising it, enables this fellow-man to possess himself of it as of a thing. There is, then, a twofold resistance to such contracts being broken, partly in the ancient and sacred rights and partly in modern and human rights.
We can now get some idea of how these things came about. It is the second of these elements which, detached from the first and entirely rid of it (e.g. of the solemn formalities), has become the consensual contract. The demands of a busier life tended to reduce the importance of ritual formalities. At the same time, however, the decline in faith lessened the value attached to them and by degrees, the meaning of many became lost. Thus, if there had been in the solemn contract no more than the legal ties originating in solemn ritual, this development would have ended in a truly backward step in contractual rights, since the undertakings contracted would henceforward have lacked any foundation. But we have just seen that there was another form of contract which managed to survive: this was the contract that has its roots in the right of the individual. It is true that this second type of bond is an offshoot of the first; for if there is already an established fact, if the spoken word assumes an objective character that removes it from the disposal of the contracting party, it is because an oath has been taken. But could this result, which used to be got in this way, now be reached by other means? It is enough to establish that the declaration of will alone was irrevocable—that is, if it was made without reservations or concealment or hypothetical conditions, if, in a word, it was represented to be irrevocable; from then onwards it could in this way have the same effect with regard to individuals as when it was hedged about with solemn formalities, and it had an equally binding force. That is to say, the consensual contract had come into existence; we must therefore derive it from the contract by solemn ritual. Whilst this ritual form of contract had taught men that undertakings could be made by a clearly defined procedure, it is true to say that this clearly defined quality came from ritual processes and liturgy. This quality was detached from the cause that originally produced it and linked to another cause—hence a new form of contract came into being, or rather, the contract proper. The consensual contract is a contract by solemn ritual—of which the useful effects are preserved, although they are reached by a different procedure. Had it not been for the existence of the contract by solemn ritual, there would have been no notion of the contract by mutual consent. Nor would there have been any idea that the word of honour, which is fugitive and can be revoked by anyone, could be thus secured and given substance. The contract by ritual was secured only by magic and sacred processes: in the consensual form the given word acquired the same security and the same objectivity through the effect of the law alone. If we are to understand this new form of contract, we cannot proceed from the nature of the will or the words that declare it: there is nothing in the word to bind the individual pronouncing it. The binding force, the action, are supplied from without. It is religious beliefs that brought about the synthesis; once formed, other causes sustained it, because it served a purpose.
Naturally, this is a simplification, to make these matters more intelligible. The system of formalism was not done away with from one day to the next and the new principle established. It was only by very slow degrees that the solemn ceremonies lost ground, under the dual influence we mentioned: that is, the new demands of economic life and the gradual clouding over of the concepts that lay at the root of these solemn rites. It was, too, only very gradually that the new rule shed the formalistic wrappings that enclosed it. This happened only as the need for it became more urgent and when the old traditions weakened as a counter-force. The conflict between the two principles lasted a very long time. Both the real contract and the contract by ritual remained the basis of the Roman contractual right, which was preserved to apply only in certain cases. And clearly, there are very distinct traces of the early juridical concepts to be found well into the Middle Ages.
The contract by solemn ritual has moreover not wholly passed away. In all codes of law it still has some application. This discussion will have enabled us to understand what these survivals amount to. The contract by solemn ritual binds men doubly; it binds them one to the other; it also binds them to the deity, if it is the deity that was party to the contract; or to the society if the society took part in the person of its representative. Further, we know that the divinity is only the symbolic form of the society. The contract in solemn ritual form therefore binds us more strongly than any other. This is why we are compelled to its use whenever the bonds to be forged are of supreme importance, as in marriage. Now, marriage is a contract by solemn ritual not just because the religious ceremonies provide the evidence and record the dates, etc. … It is above all because the bonds that have called forth moral values of a high order cannot then be broken at the arbitrary will of the parties. The intention is that a moral authority that stands higher should be mingled with the relationship being formed.