Book contents
- Frontmatter
- Contents
- Preface
- Abbreviations of Court Names
- Table of Cases
- Table of Legislation
- Part 1 Theoretical and historical introduction
- 1 The concept of promise
- 2 Promises as obligations: morality and law
- 3 The historical development of promissory ideas in the law
- Part 2 The modern law
- Part 3 The future
- Bibliography
- Index
3 - The historical development of promissory ideas in the law
Published online by Cambridge University Press: 05 August 2011
- Frontmatter
- Contents
- Preface
- Abbreviations of Court Names
- Table of Cases
- Table of Legislation
- Part 1 Theoretical and historical introduction
- 1 The concept of promise
- 2 Promises as obligations: morality and law
- 3 The historical development of promissory ideas in the law
- Part 2 The modern law
- Part 3 The future
- Bibliography
- Index
Summary
Having considered in the last chapter the idea of a promise as an obligation, as well as competing theories for the moral force of promissory obligations, in this chapter an historical analysis will be offered of the role which promise has played in the legal enforcement of voluntary obligations. As this analysis will disclose, after showing early signs of performing a likely major role in obligational theory and practice, promise dwindled in importance from the seventeenth century. Such a development might have surprised earlier generations of jurists: promissory actions played a central role in both Roman law (in the stipulatio) and the Common law (in the action of assumpsit), and promise was a core idea in the scheme of voluntary obligations of the scholastics, late scholastics, and canonists. Rather, however, than continuing to occupy this central role, promise pollinated contract, enriching it with the idea of the universal enforceability of contracts (expressed in the maxim pacta sunt servanda), and provided an analytical tool for explaining the nature of contract formation as an exchange of conditional promises. Having performed these roles, promise was eclipsed by the flowering of the very obligation of contract which it had enriched. What was left of promise at the end of this process was a continued independent existence in only one major Western legal system, and an explanatory and supplementary function in the others. It will be suggested in this chapter that the eclipsing of promise was a great loss to Western legal systems: many transactions are best analysed in promissory terms, contract providing a second best and not wholly apt analysis.
- Type
- Chapter
- Information
- Promises and Contract LawComparative Perspectives, pp. 109 - 174Publisher: Cambridge University PressPrint publication year: 2011