EX PACTO ACTIO NON NASCITUR.

Ex nudo pacto inter cives Romanos actio non nascitur.-Paul. Sent. 2, 14, I.

Nuda pactio obligationem non parit.-Ulp. in Dig. 2, 14, 7, 4.

The history of this rule is the history of Roman contracts. Yet a few of the salient points in the story may be summarily sketched, for through them runs an interesting development of law parallel to that affecting the rule that the slave had no personality,1 the rule that a wife held toward husband the legal relation of daughter,2 and to the development of the informal modes of acquiring property as equal to the formal modes.

The modern civilian sees no line of cleavage between pact, or convention, and contract; for the former, speaking generally, is sanctioned by an action at law. The meeting of the minds of the parties imposes the obligation. But the law of Rome had a very different theory. We cite the last two of the great classical jurists. Ulpian says: "A simple pact creates no obligation." Paul says: "No right of action at law arises from a mere pact." Ample testimony to show that the Roman rule, that a mere convention could not create an obligation, ground an action, was never abrogated. How, then, was it treated?

The Roman theory held that for a convention to become binding in law it must be clothed with such a juristic form as would transform it into a contract, would sanction it by an action at law. The early law contained enough such juristic forms to show a pretty complete system. Even the extant fragments of the Twelve Tables mention3 an old contract "with the bronze and the scales," the nexum, showing the quaint formalities of the symbolical sale for "spot cash,' "with its "scale bearer” and the five witnesses. So

1 See the writer's paper on Freedom and Slavery in Roman Law, AM. LAW REGISTER, Vol. 40 (N. S.), No. 11, page 637 ff.

* See the writer's paper on Some Viewpoints of Roman Law, etc., AM. LAW REGISTER, Vol. 41 (N. S.), No. 2, page 98.

'Cum nexum faciet mancipiumque, uti lingua nuncupassit ita ius esto.

long as the nexum involved an actual weighing out of uncoined metal, it could, of course, be used for loan contracts only, but after it became a mere symbol any obligation to pay a sum could be created by it whatever the cause was for entering into it. Cicero tells us that the Twelve Tables had a formal contract using the religious form—the oath, the sponsio. Probably this was the origin of the best known of the formal contracts, which one might almost call the "specialty" of the classical law, namely the contract by dialogue, oral question and congruent answer, the "verbal" contract or stipulatio. This form was capable of extension to all possible promises. Further, we find a formal written contract, literis, which must be entered in an account book by the creditor with the debtor's consent.

The commoner agreements of Romans in the early state could be made binding by setting them in such juristic forms. But the simple meeting of minds had absolutely no juristic significance. Formalism ruled a long time before the dawn of the conception that a legal obligation could be imposed without formalities-the idea of an informal contract.

So long a sway implies certain merits. What were they? The advantages that formalism always has-precision and certainty. The time elapsing between the meeting of the minds and the actual formation of the contract permitted mature reflection. Again, proof in early Rome being drawn mainly from witnesses, the formality would grip the attention of the witness, and stick in his memory better than would the termination of an often long and confused series of proposals and counter proposals. Further, the judge was freed from the burden of interpretation. Not only was the question: "Was there a contract?" comparatively easy to answer by: "Yes, if the formality was gone through,” but the question: "What was the content of the contract?" did not turn on subtle interpretation or variable considerations of equity but on patent and substantial facts. The contract itself clearly stated the object thereof. Judge or juror could not remake it, add to it, or subtract from it. Interpretation being strict, both parties to the contract knew preCic. De Off. 3, 31, III.

cisely, the creditor, what he would obtain; the debtor, what he must perform.

These merits, however, involved correlative disadvantages. A formality always implies hindrance-the time required for it,-interference with other business. Furthermore, strictness itself of interpretation might prejudice the interests of a party. The creditor could demand only what had expressly been promised, and had no recourse if debtor delayed execution, or showed bad faith. Take a case on a stipulatio to give the slave A. A. dies through neglect of promissor. Decision, no recourse. For the creditor should have required the debtor to promise the necessary care. So the creditor who failed to insert a forfeit could get no damages for delay in execution. The debtor, too, was not allowed to plead error, deceit, or constraint. However, in an early stage of civilization, these disadvantages would hardly be perceived. For contracts were infrequent acts for which both parties had time fully to prepare the minds, and the legal conscience probably had not developed sufficiently to be revolted by sporadic cases of inequity.

Rome and Roman civilization grew. Business as it grew found this system cramping, and opened the eyes of the law to its demerits. Transactions became so numerous that speed was essential. This loss of time was unendurable. The citizen traveling in a far off corner of the world-state, or fighting her battles, could not come home to go through the ancient Roman form. Must the business wait till Aulus of Rome and Numerius of Syracuse can get together and go through the oral dialogue? And, as court calendars filled with contract cases, the public conscience, too, awoke to the injustice in a system under which one party had no remedy for the fraud or inhumanity of the other.

Such considerations led during the last years of the Republic and under the Empire, to a change in the spirit of the law. This change showed itself sometimes in less strict interpretation, sometimes in less strict formalities. The rigors of interpretation equity also remedied in a measure, for the praetor introduced remedies to meet the mischiefs

'D. 45, 1, 91, pr.

Ad dandum, non faciendum tenetur. Loc. cit.

of fraud and violence. Such considerations also led to the creation of new contracts that were not formal, some of them being of strict interpretation, others not of strict law. These contracts were the "real" contracts, and the "consensual" contracts.

The earliest of the "real" contracts was the "loan for consumption," mutuum. In this A. lends to B. a "consumable," say money, B. to return an equal amount of like quality. Originally such a loan would have required to make a legal contract the secular formality "with bronze and scales," called nexum, or the religious formality in which B. took an oath, the sponsio. In later days the parties would have gone through the oral verbal formality, stipulatio, in which A. asked: "Do you sacredly promise,―spondesne?" and B. replied: "I do,—spondeo." Or the "literal" contract, literis, would have been inscribed by A. with B.'s consent in A.'s ledger. Still later the rule-very significant in the history of law-obtained that, in default of the completion of the formality the mere delivery of the consumables created the contract called mutuum, gave the right to bring an action at law.

Mutuum, or loan for consumption, was the earliest of the "real" contracts. The law developed three other "real" contracts that are well known: the loan for use (commodatum), the contract of deposit (depositum) and pawn (pignus). But an older contract for obtaining the same results as these three should be mentioned, the contract of trust (fiducia), for through it the three received their beginnings.

The contract of trust was certainly used to give security for payment of a debt and with regard to a deposit and probably in case of a loan for use. The mode was as follows: A. alienates the object to B. B. then enters into a pact or convention to alienate the same object to A. at a stated time or place—in case of deposit, upon the demand of A.; in case of pledge for security, upon the payment of the principal debt. In all these cases the convention to return was called a pact of trust (pactum fiduciae). Business had undoubtedly used it when the only sanction was moral, the

'Res quae primo usu consumuntur, as, e. g., wine oil, flour, money.

fides of the recipient, long before the law would enforce it. Later an action at law was allowed to one who had alienated under a pact of trust, if the recipient did not execute the pact, which thus became virtually a contract.

Yet it was awkward and indeed risky to loan or deposit by the process of first divesting oneself of the property right and then receiving a pact for the return of the property. Naturally, it seemed simpler to divest oneself of the physical possession, retaining the property right and the technical possession. At this point that ever-recurring phenomenon in the history of Roman law appears-the equitable remedies of the praetor. This "keeper of the people's conscience"s had developed a series of injunctions (interdicta), which protected mere possession. Under the contract of trust the property right had passed over; now the property right is held and temporary possession is turned over to one who enters into a convention to return the possession. Thus were developed the new pacts of loan, deposit and pawn. Even after the law gave an action to enforce the contract of trust, it refused legal remedies in the case of these new pacts. Here equity came in again, and the praetor devised and furnished remedies in equity. Equity, as so commonly in the Roman system, but blazed the path for the civil law, which eventually, in the last years of the Republic, reached the point of allowing special actions called, respectively, action on loan for use (actio commodati), or action on deposit (actio depositi), and on pawn (actio pigneraticia). At that moment other vital exceptions to the rule, ex pacto actio non nascitur, had arisen. These pacts had become contracts. The contract of trust naturally fell out of use except for security for debt where it had certain advantages. This fact explains how it is that the classical jurists name only four "real" contracts (arising, they say, re, "from the thing,” possession of which is given): loan for consumption (mutuum), loan for use (commodatum), deposit (depositum), and pawn (pignus).

It was probably about the time when the formulary system of procedure at law began that there appeared the four

See the writer's paper on Justinian's Redaction. AM. LAW REGISTER, Vol. 40 (N. S.), No. 4, page 199, note.