Causa and consideration - a comparative overview

Author:Dimitar Stoyanov
Position::Assistant at Civil Law in the New Bulgarian University, Sofia, PhD. (e-mail: dimitarstoyanov2011@gmail.com).
Pages:14-33
SUMMARY

The article examines the Roman origin and historical development of "causa" as an essential requirement of the contracts, as well as its adoption in the majority of the national legislations belonging to the French legal family. Moreover, the article analyzes what has become to be known as the functional equivalent of causa in the English law – the doctrine of consideration and examines the... (see full summary)

 
FREE EXCERPT
LESIJ NO. XXIII, VOL. 1/2016
CAUSA AND CONSIDERATION A COMPARATIVE OVERVIEW
Dimitar STOYANOV
Abstract
The ar ticle examines the Roman or igin and histor ical development of "causa " as an essential
requirement of the contr acts, as well as its adoption in the majority of the na tional legislations
belonging to the Fr ench legal family. Moreover, the ar ticle analyzes what ha s become to be known as
the functional equivalent of causa in the English la w the doctrine of consideration a nd examines the
correla tion between them. In the end, the la test tendencies in codifying the European civil la w with
respect to causa and consideration ar e being critically discussed.
Keywords: causa, consideration, mixed legal systems, compara tive law, European private law.
1. Introduction
There is hardly any major national
legislation that does not contain any rules on
contracts and their formation. Being looked
upon as the most important consequence of
the autonomy of the will, contracts serve as
the founding stone of modern socio-economic
life. Yet, the unrestricted application of this
philosophical doctrine, as profound as it
might be, could lead to results which cannot
be considered appropriate, since virtually
every promise would be treated as legally
binding. Throughout the development o f
transactions, scholars and legislators have
sought to establish numerous legal criteria to
determine whether an expression of will is
itself capable of producing the designated
legal effect. These efforts were intended not
only to protect the legal interests of the
contracting parties by providing an obstacle
to their desire or promise, but also to protect
the interests of the whole society by
promoting legal security in transactions.
Assistant at Civil Law in the New Bulgarian University, Sofia, PhD. (e-mail:
dimitarstoyanov2011@gmail.com).
The most notable examples of such
criteria can be found in the necessity to
observe a specific form or to hand over the
goods (‘traditio’) in order to consider oneself
bound by a contract. Thus, by providing
additional requirements to the process of
expressing one’s will a clear distinction
between enforceable promises and simple
arrangements could easily be established.
However, this model of extreme formalism
that dominated the rules of almost every
ancient society (the most notable example
being the law in Ancient Rome) suffered
gradual weakening after the collapse of the
Roman Empire. The canonist lawyers were
seeking to strike a balance between the
classical Roman texts and the new socio-
economical situation in Europe, putting
consensual contracts in a rather favourable
position compared to the formal ones. Their
interpretation of Roman texts influenced the
future development of private law. Several
centuries later, with the new era of
Enlightenment, the autonomy of the will was
established as the founding stone o f modern
contract law. Still, continental lawyers from
that period had to answer the question how to
Dimitar STOYANOV 15
LESIJ NO. XXIII, VOL. 1/2016
distinguish between enforceable promises
and accidental agreements when additional
requirements were considered to be an
exception rather than a rule. The need to
establish new abstract criteria to be used as an
essential element of the validity of contracts
and as indicia of seriousness brought the
modern theory of causa to life.
However, Roman law did not play a
significant part in moulding modern private
law everywhere in Europe. This is the reason
why English common law did not adopt the
concept of causa, but rather developed its own
methods to determine which promises could
be enforceable and the ultimate result of this
process, lasting for centuries, became known
as the doctrine of consideration.
The similarity of the two concepts is
beyond doubt. They share some common
features, yet there is a considerable difference
in terms o f notion, scope of application and
legal consequences between them, which
prevents the statement that the former is a
complete functional equivalent of the latter.
Moreover, there is a third group of
national legislations where neither causa nor
consideration is acknowledged as a vital
element of the contracts. It is sufficient for an
agreement to be both valid and enforceable
when there is mutual consent of the parties
upon its primary points.
The main aim of this article is to analyse
these three types of legal approach to the
question how to distinguish between a simple
agreement and a valid contract by presenting
the theory of causa and the doctrine of
1
Zimmermann, R., The Law of Obligations. Roman Foundations of the Civilian Tradition, (Cape Town, Wetton,
Johannesburg: Juta & Co, Ltd, 1992), 549.
2
Lorenzen, E., “Causa and Consideration in the Law of Contracts”, Yale Law Journal 7 (1919): 630.
3
Peterson, S., “The Evolution of “Causa” in the Contractual Obligations of the Civil Law” Bulletin of the
University of Texas, 46 (1905): 39.
4
Daruwala, P., The Doctrine of Consideration Treated Historica lly and Comparatively, (Calcutta: Butterworth
& Co., 1914), 367.
5
Buckland, W., Roman Law and Common Law. A Comparison in Outline, (Cambridge University Press, 1965), 227.
6
See Zimmermann, R., The Law of Obligations, op.cit., p. 551.
consideration in a comparative perspective,
trace its origin, present and future tendencies.
2. Origin of the causa
As far as the origin of causa is
concerned, many authors state is that it is a
totally un-Roman concept
1
, that no general
theory of causa could be deduced from the
Roman texts
2
and even that having such an
abstract principle was impossible for the
Romans because of the primitivism of their
legal system that excluded any possibility of
dealing with abstractions
3
. Although the
presence of causa as a concept in Roman
private law is admitted by a few scholars, they
point out that it was used in various senses,
differing immensely from the modern notion
of causa
4
. The vast majority of the authors
agree upon the fact that the earliest ideas of
causa emerged as the result of the canonists’
interpretations; a sophisticated medieval
attempt to generalise various figures
belonging to Roman private law
5
. St. Thomas
Aquinas developed the idea that every effect
is dependent upon its reason (causa) and
causa is something without which a thing
cannot exist. If everything is based on a causa,
he said, this should apply to contracts as well.
Influenced by St. Thomas Acquinas, the
glossator Baldus, while interpreting the
Roman contract of stipulation, stated that all
contracts have a causa the “nominate” carry
it within themselves, while the abstract (such
as the stipulation) receive it from outside
6
.
Other scholars assume that the origin of causa
can be found several centuries later, when the

To continue reading

REQUEST YOUR TRIAL