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The Religious Sources of General Contract Law: An Historical Perspective


In his dramatic, if not mystical, account of the birth, growth, senescence, and death of American contract law, and of its ultimate dissolution into the law of tort, Grant Gilmore certainly did not intend to join forces with those who would later seize on his story as evidence that both contract and tort, and, indeed, law all together, are merely artificial devices to support a hierarchical and hegemonic political structure and to facilitate economic exploitation of the weak by the strong. Yet Gilmore's exposé of the logical circularities and fallacies of contract doctrine (especially as it is taught in first-year courses in American law schools) does add fuel to the already raging fires of skepticism—skepticism not only about the coherence of individual branches of the legal tree (contracts, torts, property, etc.) but also about the validity of doctrinal legal analysis and ultimately of law itself.

Arthur Corbin—Gilmore's mentor and the hero of his book—did not share that skepticism, although he strongly opposed the rigidities of the then prevailing contract doctrine, especially as represented in the teachings of his friend and rival, Samuel Williston. Unlike Williston, Corbin was prepared to give a contractual remedy for losses caused by reliance on a promise, and thus to bring contract and tort into a common focus. He was also more willing than Williston to expand concepts of fairness at the expense of strict liability for breach. Nevertheless, Corbin did not doubt, and surely did not seek to undermine, the coherence of contract law.

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1. G. Gilmore, The Death of Contract (1974). Cf., Dalton, An Essay in the Deconstruction of Contract Doctrine, 94 Yale L.J. 997, 1012, 1040-43, 1067-71, 1084–87 (1985); Mensch, Freedom of Contract as Ideology, 33 Stan. L. Rev. 753 (1981); Gabel and Feinmann, Contract Law as Ideology, in The Politics of Law: A Progressive Critique 172, 177 (Kairys D. ed. 1982).

2. See Gordley, Book Review, 89 Harv. L.Rev. 452, 453–54 (1975) (reviewing Gilmore G., The Death of Contract (1974)). Gordley stresses the Romanist contract law of the twelfth century and thereafter. The canon law of contract that emerged in those centuries was in some ways even more integrated and systematized. See infra, section I, on canon law.

3. This is the main theme of Berman H., Law and Revolution: The Formation of the Western Legal Tradition (1983).

4. Pope Gregory VII's revolutionary document of 1075, Dictates of the Pope (Dictatus papae), declared for the first time the independence of the Roman church from secular rulers and the supremacy of the papal curia over all ecclesiastical courts. See Berman, supra note 3, at 94-99. Though the Dictates were never made a formal part of the canon law, they formed the basis of many of its main principles.

5. See Berger, From Hostage to Contract, 35 Ill. L. Rev. 154 (1940) and literature cited therein; Barmann, Pacta sunt servanda: Consideration sur l'histoire du contrat consensual. Revue internationale de droit compare 67 (1961).

6. See McNeill J. T. and Gamer H., Medieval Handbooks of Penance: A Translation of the Principal Libri Poenitentiales and Selections from Related Documents (1938). See Berman, supra note 3, at 68-84.

7. See Dawson J. P., The Oracles of the Law (1968), 114 ff. (1968); Schulz F., The History of Roman Legal Science (1946); Berman, supra note 3, at 127 ff.

8. See Barmann, supra note 5, at 18-25; Berman, supra note 3, at 245-50.

9. Id. at 247-49; Gordley, Equality in Exchange, 69 Calif. L. Rev. 1587, 1638 (1981). See Noonan J. Jr., The Scholastic Analysis of Usury 105 ff. (1957).

10. That our modern contract law is based on these propositions is a major thesis of Fried C., Contract as Promise: A Theory of Contractual Obligation (1981).

11. Tierney B., Religion, Law and the Growth of Constitutional Thought, 11501650 1 (1982).

12. See Simpson A. W. B., A History of The Law of Contract: The Rise of the Action of Assumpsit 297302 (Slade's Case) and 316-488 (consideration) (1975).

13. Simpson's definitive study, supra note 12, is concerned with “the rise“ of assumpsit, which, he concludes, had risen by the early 1600s. He therefore deals only cursorily with developments after the 1620s and 1630s. Atiyah P., on the other hand, in his volume The Rise and Fall of Freedom of Contract (1979), is concerned with “the rise” of freedom of contract after 1770, and deals only cursorily with developments prior to that date. Similarly, Horwitz M., The Transformation of American Law, 17801860 (1977), makes broad characterizations of English and American law as it existed before 1780 without, however, presenting substantial evidence for them. Partisans of the approach taken by Simpson, which is the traditional approach of English legal historians, are able to show that the transformation of “medieval” to “modern” contract doctrine took place long before the late eighteenth century. See Simpson, The Horwitz Thesis and the History of Contract, 46 U. Chi. L. Rev. 533 (1979). On the other hand, partisans of the approach taken by Atiyah and Horwitz, which emphasizes the origins of contemporary contract ideology, though they often ignore or misinterpret earlier doctrinal developments, are able to show that there was an important ideological shift in the nineteenth century. Both sides would be greatly aided by a systematic exploration of the terra incognita of English legal development in the century and a half after the outbreak of the Puritan Revolution. Some steps toward filling this hiatus have been taken by Stouar S., A History of Contract at Common Law (1975) and Francis, The Structure of Judicial Administration and the Development of Contract Law in Seventeenth-Century England, 83 Colum. L. Rev. 35 (1983). See infra notes 14, 15, 18, 19.

14. See Stoljar, supra note 13, Chapter 12; Francis, supra note 13, pp. 122-125; Holds-worth, IV History of English Law, 64, 72, 75 (1924).

15. Simpson, History of Contract, supra note 13, at 446, shows that inadequacy of consideration had not been recognized as a defense at common law in medieval times, but that that was partly due to the fact that until some time after the sixteenth century “the conception of consideration was not that of a price for a promise, but a reason for a promise.” In other words, prior to the late seventeenth century the reason for the promise had to be “adequate,” even though the price paid might have been relatively low or even nominal. This distinction is often ignored by those who would trace an unbroken continuity in the doctrine of consideration from the sixteenth to the eighteenth centuries.

16. Style 47, 82 Eng. Rep. 519 (1647); Aleyn 26, 82 Eng. Rep. 897 (1648). Most discussions of the case use only the report in Aleyn. The report in Style needs also to be read in order to grasp the full significance of the case.

17. Aleyn 26, 82 Eng. Rep. 897 (1648).

18. See Simpson, History of Contract, supra note 13, at 31-33. Simpson shows that the sixteenth-century writer Brooke had distinguished the effect of a private contract, where liability was self-imposed, from the effect of the general law, and had stated that a man by private contract could make himself strictly liable, and that at least one case had adopted that point of view. He states that “in the leading case of Paradine v. Jane (1648) Brooke's theory eventually triumphed.” See infra note 19.

19. This is the burden of Simpson's book. See supra note 14. Yet Simpson is careful to distinguish between the cases and writings that anticipate the establishment of a doctrine and those in which the doctrine eventually “triumphs.”

20. Plucknett T.F.T., A Concise History of the Common Law 652 (5th ed. 1956).

21. See Atiyah, supra note 13; and Horwitz, supra note 13.

22. Seldeniana, or The Table Talk of John Selden, Esq. 45-46 (1789). Selden's Table Talk was first compiled in 1654 and first published in 1689.

23. Id. at 37-38.

24. The Address to the General Laws of New Plymouth (1658), 11 Records of the Colony of New Plymouth Laws, 1623-82 72 (Pulsifer ed. 1861).

25. Witte J., Notes on English Puritanism and the Law (unpublished, 1985).

26. Quoted in Gough J.W., The Social Contract: A Critical Study of its Development 90 (1936).

27. Quoted id. at 92. (Note that Selden's analogy was with the law of leases, in which the doctrine of absolute obligation was firmly established.) The obligation of both social contract and private contract was traced to the Bible by the Puritan covenant theologian Samuel Rutherford, who wrote that the king and his people should not fight with each other just as “two merchants should keep faith one to another, both because God hath said he shall dwell in God's mountain who sweareth and covenanteth, and standeth to his oath and covenant, though to his loss and hurt (Psalm xv) and also because they made their covenant and contract thus and thus.” Rutherford S., Lex, Rex, or the Law and the Prince 201 (1644; reprint edition 1982). John Locke drew heavily on Rutherford for his doctrine of social contract.

28. On the development of covenant theology in seventeenth century English Puritanism, see Miller, The Marrow of Puritan Divinity, Transactions of the Colonial Society of Massachuetts 247300 (1936); Walzer M., The Revolution of the Saints: A Study in the Origins of Radical Politics 167 ff., 222 ff. (1968).

29. Quoted in Hill C., Puritanism and Revolution: Studies in Interpretation of the English Revolution 246 (1958). Cf. Zaret D., The Heavenly Contract: Ideology and Organization in Pre-Revolutionary Puritanism 161 (1985). Zaret draws from sermons and tracts many examples of the tendency of Puritan preachers, in the period before 1640, to analogize the covenant between God and man to commercial contracts in which each party has the right to demand of the other that he “perform his bargain.”

30. Cf. Eusden J., Puritans, Lawyers, and Politics in Early Seventeenth Century England 28 ff. (1968); Gough, supra note 26, at 82-99.

31. Quoted in Walzer, supra note 28, at 24.

32. Witte, supra note 25.

33. MacIntyre A., After Virtue: A Study in Moral Theory 52 ff. (2nd ed. 1984).

* Woodruff Professor of Law, Emory University School of Law; Ames Professor of Law, Emeritus, Harvard University School of Law. The valuable contribution which John Witte, Jr., has made in the preparation of this article is gratefully acknowledged.

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