Natural Rights on the Threshold of the Scottish Enlightenment

11. Contracts and Quasi Contracts

106 u chapter 11 u Contracts and Quasi Contracts1 i. Contracts [At p. 107 below, Carmichael rejects the distinction which Pufendorf offers between “agreements” (pacta) and “contracts” (contractus) according to which “contracts” are agreements which “deal with things and actions of commercial signi ficance and which consequently rest on a presupposition of ownership and value in things” (Pufendorf, On the Duty of Man and Citizen, I.15.1, p. 97). Carmichael therefore merely makes some incidental remarks on value before proceeding to discuss contracts in detail. In discussing contracts he follows the order of exposition which was usual in accounts of this branch of Roman law, while amending specific doctrines in the light of natural law.] For a thing to have value, the first requisite is this suitability, either real or imaginary [“to make a direct or indirect contribution to the needs of human life and to render it fuller and more agreeable” (Pufendorf)]; however the justification of the value is not the same as the reason for the suitability , as the author himself properly points out later. In general it can be said here that the value of things rests on two grounds, scarcity and difficulty of acquisition. And scarcity is estimated on the basis of two factors, the number of competitors for an object or service and its suitability to contribute to the use or pleasure of human life. See Grotius, II.XII.14. [I.14.3.i] This method of defining value [“by men’s common valuation and as1 . From the notes to bk. I, ch. 14, “On Value”; and bk. I, ch. 15, “On Contracts Which Presuppose Value in Things and on the Duties They Involve”; also Supplement IV, “On Quasi Contracts.” contracts and quasi contracts 107 sessment, or by the usage of the market together with the consent of those who are dealing with each other” (Pufendorf)] holds no less in the natural state than in the civil state, i.e., in both cases the value of things is determined on the one hand directly by an agreement between contracting individuals , on the other hand, unless a law of the commonwealth forbids it, by the usage of the marketplace. [I.14.5.i] Agreements and contracts [Pufendorf says: “In its general sense an agreement (pactum) is the consent and concurrence of two or more men to the same intent (placitum).” Carmichaelcomments :] On this definition of Ulpian’s we have said enough on p. 80, where we have also pointed out that the term agreement (pactum) is usually used in the stricter sense for an act which consists of mutual consent and is obligatory on at least one side. We have also noted (at p. 81) that the same term is there taken in the strictest sense for an act which is obligatory on both sides, or at least for an act which is obligatory on at least one party and transfers some right from both parties. It is in this last mentioned sense that the term agreement should be taken, so that, in the division of the mutual obligatory act, it is directly opposed to free promise; here too it is most aptly taken in this sense. [I.15.1.i] [Carmichael rejects Pufendorf’s distinction “between simple agreements and contracts.”] The author could safely have omitted this distinction since, as it is understood by the jurists, it arises from a superfluous subtlety of Roman law, and (as Titius says) it obviously smells of the notary’s art.2 The author evidently felt this and does not explain the difference between these two things according to the maxims of Roman jurisprudence but rather by natural reason, though he seems to think that they come to more or less the same thing. But even as explained by the author the distinction is not of much use in itself, and does not square properly with the accepted appli2 . Titius, Observationes, no. 354. 108 natural rights cation of these terms among the Roman jurists (for there may be innumerable agreements about things or actions occurring in commerce, which would not be called contracts by the nomenclature of the Romans, for example exchange of things by consent alone). Thus it seems more satisfactory to drop the distinction between bare agreements and contracts from natural jurisprudence altogether; under the influence of equity, the distinction has been eliminated in our day from...