CHAPTER 2 HISTORY OF CONTRACTS

The positive duty resulting from one man's reliance on the word of another was the slowest conquests of civilization”. Henry Maine

“Younger the civilization the simpler were the obligations”. Henry Maine

The unit of the society in Ancient Rome was the family headed by the patria potestas and not the individual member of the family. In fact, the members of the family were incapable of entering into contracts. If entered, the patria potestas could disregard such contracts. Hence, a family could contracts with another family. That is one patria potestas with another patria potestas.


In the early phase of development there were no contracts at all. However, families made promises with other families. If the promises were associated with solemn ceremonials then they had the sanction (force) behind it. Promises without them were empty. The gorgeous ceremonies were, in later years, slowly dispensed with. Some contracts were allowed to be entered into without any formalities. The mental element in the contract was called by the Roman as a 'pact'. Hence, contracts meant 'pact plus obligation'.


A word of promise was the basis of contract. The positive duty resulting from one man's reliance on the word of another was the slowest conquests of civilisation.

The early form of contract was called Nexum. This meant a transaction with help of libripans (copper and balance). The contract was a right in personam. Distinctions had been made between contract and conveyance. When property was transferred it was called 'mancipation'.


Henry Maine has traced the origin and has set out the different stages of development as follows:


1. First stage: A conveyance being completed with formalities E.g. sale of a slave.

2. Second Stage: The slave was transferred but money was not paid. Here the contract Nexum continued.

3.Third stage: Nothing is handed over and nothing is paid by the vendee. Here both obligations were deferred, (postponed).

4. Fourth StageAs already stated contract was "pact plus obligation'. Obligation was a bond which bound the parties togetherA pact without obligation was not a contract. Obligation signified the rights and duties,


Henry Maine has made the classification of contract as follows

1. Verbal contract: This was the most ancient contract. This was done under stipulation i.e, questions and answers.

Eg. The purchaser asked 'Do you promise to deliver me your ten slaves at such a place and on such a day for such an amount. The seller answered 'I do promise'. This was the original method of contract.


2. Literal contract : This meant the written contract: Here a ledger had been kept and entries were made therein. This had the effect of making the obligation complete. This shows the remarkable domestic system of maintaining accounts.


3. Real contracts : Here-the contract imposed a legal duty but this was based on moral consideration. Undertaking to return the loan was essential in the case of loan agreement.


4. Consensual contract: 'consensus' meant mutual consent of the parties to contract; without it there was no contract.


Four different kinds of this were apparent in Roman law:


1. Mandatum (Agency)

2. Societas (Partnership)

3. Emptio Venditio (Sale)

4. Locatio conductio (letting out or hiring)

It is evident from the above analysis that the younger the civilization the simpler were the obligations.

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