A Concise History of the Common Law

CONTRACT

CONTRACT It is remarkable that, in spite of the numerous foreign influences which were at work in the field of contract, the common law was so little affected by them. The Church very early took a strong view of the sanctity of contractual relationships, insisting that in conscience the obligation of a contract was completely independent of writings, forms and ceremonies, and tried as far as she could to translate this moral theory into terms of law. Then, too, there were the mercantile courts which were endeavouring to enforce the practice of the best merchants and to express that practice in terms acceptable to either or both of the two conflicting schools of legal experts whose approbation was necessary -the civilians and the canonists_ In England all these influences were at work. Glanvill knew just enough of the Roman classification of contracts to be able to describe-and then misapply-it. while Bracton endeavoured to express common law in Romanesque language. In the later middle ages ecclesiastical Chancellors in England were acting on canonical ideas-and yet in spite of all this the English law of contract is neither Roman nor canonical. If we are to seek the reasons for this we shall have to examine a good deal of procedural detail. The various forms of action had come into existence, and had taken definite shape, long before English law regarded the field of contract as a whole. By the time these foreign influences became strong the common law had already developed an inflexible system of procedure which did not easily permit the introduction of new ideas. In consequence, the common law courts were left to develop a law of contract as best they could out of the stubborn materials of the forms of action, and so, after many years of uncertainty and long conflicts with the technical and procedural difficulties which by that time were inherent in the common law system, we finally arrived at a systematic law of contract about three centuries later than the rest of the world. This Part will therefore be devoted to a brief summary of the lines along which the common law of contract developed. 627 ...