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

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