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popular notion that the common law borrowed Consideration from the Chancery. The requirement of consideration in all parol contracts is simply a modified generalization of the requirement of quid pro quo to raise a debt by parol. The latter, in certain cases
a at least, is very ancient, and seems to be continuous with the similar doctrine of the early Norman and other continental sources which have been much discussed in Germany."
may remark by way of parenthesis that this requirement did not extend to the case of a surety, who obviously did not receive a quid pro quo in the sense of the older books and yet could bind himself by parol from the time of the Somma to Edward III,
61 Somma, II., C. 26, $8 2, 3, in 7 Ludewig, Reliq. Manuscript. pp. 313, 314; Grand Coustumier, C. 88 and 90; Statutum Walliae, 12 Ed. I; “Si vero Debitor venerit, necesse habet Actor exprimere petitionem, et rationem sue petitionis, videlict, quod tenetur ei in centum marcis, quas sibi accomodavit, cujus solutionis dies preteriit, vel pro terra vel pro equo, vel pro aliis rebus seu catallis quibuscunque sibi venditis, vel pro arreragiis redditus non provenientis de tenementis, vel de aliis contractibus," etc. Y. B. 39 Ed. III., 17, 18, "issint il est quid pro quo"; 3 Hen. VI. 36, pl. 33; 7 Hen. VI. I, pl. 3; 9 Hen. VI. 52, pl. 35; 11 Hen. VI. 35, pl. 30 at fol. 38; 37 Hen. VI. 8, pl. 18. See also "Justa debendi causa” in Glanv. X. C. 3; Dial, de Scacc. ii., C. 1 and 9; Fitz. Abr. Dett, pl. 139; Y. B. 43 Ed. III. II, pl. 1. Form of Count given by 1 Britton (ed. Nichols), 161, 162, pl. 12; Y. B. 20 & 21 Ed. I. App. 488, “Marchandise" ground of debt. Sohm, Eheschliessung, p. 24; I Franken, Französ. Pfandr., $ 4, p. 43; Schulte, Reichs- u. Rechtsgesch. § 156 (4th ed.), p. 497. Consideration is first mentioned in equity in 31 Hen. VI., Fitz., Abr. Subpena, pl. 23; Y. B. 37 Hen. VI. 13, pl. 3, and by the name quid pro quo. So in substance as to assumpsit; V. B. 3 Hen. VI. 36, pl. 33.
The interpretation of Fleta, II, C. 60, § 25 by the present writer in The Common Law, 266, is rightly criticised in Pollock, Contr. (3rd ed.), 266, as appear by comparing the more guarded language of Bracton, 15b.
and even later where the custom of various cities kept up the ancient law.52 Sohm has collected evidence that suretyship was a formal contract in the time of the folk laws, in aid of his theory that the early law knew only two contracts; the real, springing from sale or barter and requiring a quid pro quo; and the formal, developed from the real at an early date by a process which has been variously figured.53 I do not attempt to weigh the evidence of the continental sources, but in view of the clear descent of suretyship from the giving of hostages, and the fact that it appears as a formless contract in the early Norman and Anglo-Norman Law, I find it hard to believe that it owed its origin to form any more than to quid pro quo. Tacitus says that the Germans would gamble their personal liberty and pay with their persons if they lost." The analogy seems to me suggestive. I know no warrant for supposing that the festuca was necessary to a bet.
52 Somma, I., C. 62, II. C. 24; 7 Ludewig, 264, 309; Grand Coustum. .C. 89 (cf. Bract, fol. 149b, § 6); The Common Law, 260, 264. See, besides authorities there cited, F. N. B. 122 K; ib. I in marg., 137 C; Y. B. 43 Ed. III, II, pl. 1; 9 Hen. V. 14, pl. 23. Car. M. Cap. Langob, A.D. 813, ch. 12, "Si quis pro alterius debito se pecuniam suam promiserit redditurum in ipsa promissione est retinendus," cited Löning, Vetragsbruch, 62, n. 1.
In 2 Gesta Hen. II. (Ben. Abbas, Rolls ed.), 136, sureties make oath to surrender themselves if the agreement is broken. Sohm, Eheschliessung, 48, goes so far as to argue that the oath was simply one substitute for the Salic formal contract. But I find no evidence that the oath was necessary in England unless for ecclesiastical jurisdiction. 2 Gesta Hen. II., p. 137.
53 See, e.g., I Franken Französ. Pfandr. $ 16, pp. 209–216; $ 18, pp. 241 et seq.; ib., 261-266.
54 Germ. 24.
I go one step further, and venture hesitatingly to suggest that cases which would now be generalized as contract may have arisen independently of each other from different sources, and have persisted side by side for a long time before the need of generalization was felt or they were perceived to tend to establish inconsistent principles. Out of barter and sale grew the real contract, and if the principle of that transaction was to be declared universal, every contract would need a quid pro quo. Out of the giving of hostages, familiar in Caesar's time, grew the guaranty of another's obligation, and if this was to furnish the governing analogy, every promise purporting to be seriously made would bind. But the two familiar contracts kept along together very peaceably until logic, that great destroyer of tradition, pushed suretyship into the domain of covenant, and the more frequent and important real contract succeeded in dividing the realm of debt with instruments under seal.
To return to Equity. In the Diversity of Courts (Chancery) it is said that “a man shall have remedy in Chancery for covenants made without specialty, if the party have sufficient witness to prove the cove
85 Y. B. 18 Ed. III., 13, pl. 7; 44 Ed. III. 21, pl 23; 43 Ed. III, II pl. 1. So warranty, which had been merely an incident of a sale (Lex Salica, C. 47; Glanv. X., C. 15 and 17), came to be looked at as a covenant, Y. B. 44 Ed. III. 27, pl. 1; and at a later date bailment was translated into contract. As a further illustration, I
may add that in modern times Consideration has still been dealt with by way of remuneration (see e.g. 2 Bl. Comm., 444; I Tidd's Practice, C. I, as to assumpsit), and only very recently has been resolved into a detriment to the promisee, in all cases.
nants, and yet he is without remedy at the common law.” This was in 1525, under Henry VIII., and soon afterwards the contrary was decided.se But the fact that a decision was necessary confirms the testimony of the passage quoted as to what had been the tradition of the Chancery. I do not propose to consider whether thus broadly stated it corresponded to any doctrine of early law, or whether any other cases could be found, besides that of the surety, in which a man could bind himself by simply saying that he was bound. For although the meaning of the tradition had been lost in the time of Henry VIII., when the text-book spoke of covenants generally, the promise with which Equity had dealt was a promise per fidem. Thus, under Edward IV,57 a subpoena was sued in the Chancery alleging that the defendant had made the plaintiff the procurator of his benefice and promised him per fidem to hold him harmless for the occupation, and then showing a breach. The Chancellor (Stillington) said that "in that he is damaged by the non-performance of the promise he shall have his remedy here." And to go back to the period to which this article is devoted, we find in the reign of Richard II. a bill brought upon a promise to grant the reversion of certain lands to the plaintiff, setting forth that the plaintiff had come to London and spent money relying upon the affiance of the defendant, and that as he had no specialty, and nothing in writing of the aforesaid covenant, he
56 Cary, Rep. in Ch. 5, Choyce Cases in Ch. 49.
had no action at the common law.58 This is all the direct evidence, but slight as it is, it is sufficient to prove an ancient genealogy, as I shall try to show.
Two centuries after the Conquest there were three well-known ways of making a binding promise: Faith, Oath, and Writing. The plighting of one's faith or troth here mentioned has been shown by Sohm and others to be a descendant of the Salic Fides facta, and I do not repeat their argument. It still survives in that repertory of antiquities, the marriage ceremony, and is often mentioned in the old books.61
Whether this plighting of faith (fides data, fides facta) was a formal contract or not in the time of the Plantagenets, and whether or not it was ever
58 Whalen v. Huchyndin, 2 Cal. Ch. ü.
59 Compare Letter of Gregory IX. to Henry III., Jan. 10, 1233, in i Royal Letters, Henry III. (Rolls ed.), p. 551, "Possessiones
fide ac juramentis a te praestitis de non revocandis eisdem, sub litterarum tuarum testimoniis concessisti," with Sententia Rudolfi Regis, A.D. 1277, Pertz, Monumenta, Leges II, p. 412: “Quaesivimus
utrum is qui se datione fidei vel juramento corporaliter prestito, vel patentibus suis litteris, ad obstagium vel solutionem alicujus debiti ad certum terminum obligavit, nec in ipso termino adimplevit ad quod taliter se adstrinxit de jure posset . per iulicium occupari? Et promulgatum extitit communiter ab omnibus, quod is, qui modo predicto . . . promisso non paruit, valeat, ubicumque inveniatur, auctoritate iudiciaria conveniri."
60 Lex Salica (Merkel), Ch. 50; Lex Ripuaria, Ch. 58 (60), $ 21; Sohm, Eheschliessung, 48, 49, notes; I. Franken Französ. Pfandr. 264,
61 Eadmer (Rolls ed.), 7, 8, 25; Dial. de Scacc., II. C. 19; 2 Gesta Hen. II. (Ben. Abbas), 134-137; 3 Roger Hoved. (Rolls ed.), 145; Glanv. VII., C. 18; X., C. 12; 1 Royal Letters, Henry III. (Rolls ed.), 308; Bract, 179b. Cf. id. 175a, 406b, etc.; Reg. Majest. II., C. 48, § 10; C. 57, § 10; Abbrev. Plac. 31, col. 1 (2 Joh.
orf. rot. 21); 22 Ass. pl. 70, fol. 101.