chapter  VI
49 Pages

Contract

WithMarshall L. DeRosa

Revived philosophical jurisprudence has its first and perhaps its greatest opportunity in the Anglo-American law of contracts. The real contract of mutuum rationalizes pecunia credita. The traditional requirement of a causa ciuilis, a civil, that is legal, reason for enforcing a pact, gave way before natural-law ideas in the eighteenth century. English equity in the nineteenth century took subsequent action in reliance upon a promise of a gift to be a common-law consideration on the basis whereof the promise was specifically enforceable. Pothier gave over the contract categories of the Roman law as being "very remote from simplicity." The attempt in the nineteenth century to Romanize our theories of liability involved a Romanized will-theory of contract. Philosophically the idea seems to be that of the equivalent theory, in the form with which we are familiar in Anglo-American discussion of this subject as the injurious-reliance theory. Probably the bargain theory is the one most current in common-law thinking.