Article by Tony Weir
I am not about to enter here into a critical examination of the Roman contracts: it would be a work of deadly ennui. If we were to imagine all possible defects—in their division, in their nomenclature—it would be difficult to exaggerate them. The idea of reciprocal promises, of mutual dispositions, so familiar to all the world, finds itself so obscured in this mischievous and absurd system of jurisprudence, that the lawyers, who have not ceased to explain it, always feel the necessity of new explanations.
These are the words of that unrealistic busybody, Jeremy Bentham. Like him, if for very different reasons, we are not going to enter into a critical examination of the Roman contracts, but we do propose to make some observations about them in relation to the common law of England. We are not, any more than Bentham, going to be scholarly; neither, unlike him, have we a unitary view of what is, or what is not desirable.
We have no theory to propound, neither of the institution of contract nor of its historical development. Contract, like tort, and rather more so than obligation, is a construct, an institution, not a natural system such as a cat or a stone, and unlike Jeremy Bentham and all too many of his ilk, we are not persuaded of the merits of propounding a single theory for the explanation, much less for the determination or delimitation, of such a construct or institution. It is not by reason of any entelechy in the notion of contract that it covers what it now does, or ever did. Like history itself, we are not opposed to casuistry. It is possible for us, like Hamlet, to tell a hawk from a handsaw, and to do so without a complete theory of aerial predators or an exhaustive inventory of the carpenter's toolbox; furthermore, we can effect such telling without having a theory of telling, though the current fad of epistemology might lead one to doubt that (given a theory of doubting). Nor, though we shall talk of developments, shall we suppose that they occurred in response to any rule or even as instances of any trend. We sympathise with H.A.L. Fisher:
Men wiser and more learned than I have discerned in history a plot, a rhythm, a predetermined pattern. These harmonies are concealed from me. I can see only one emergency following upon another . . . there can be no generalizations, only one safe rule for the historian: that he should recognize in the development of human destinies the play of the contingent and the unforeseen.
About the Author
Tony Weir. Fellow, Trinity College, Cambridge.
Citation
66 Tul. L. Rev. 1615 (1992)