Western jurists have spent the last centuries trying to escape the ill effects of will theories of contract law. For pre-nineteenth-century continental jurists, the enforceability and effects of a contract depended on the reason or causa for which the contract was made. For the will theorists, what mattered was what the parties willed, not why they had chosen to do so. Nineteenth-century positivists took a similar approach to law. The “business” of jurists, Sir Frederck Pollock said, is to “learn and know, so far as needful for their affairs, what rules the State does undertake to enforce and administer, whatever the real or professed reasons for those rules may be.”1 We now recognize that the effects of laws and contracts should depend on the reasons for which they are made, although we are often unsure how to take these reasons into account. This Article describes and evaluates how jurists once took account of the causa for which a contract is made.
About the Authors
James Gordley, W.R. Irby Distinguished Professor, Tulane Law School.
Hao Jiang, Assistant Professor of Comparative Private Law, Bocconi University, Milan, Italy. Visiting Fellow, Yale Law School.
Citation
98 Tul. L. Rev. 1023