ABSTRACT
THE consensual contract (or contract by mutual consent),in the final analysis, is, as it were, a climax, a point ofconvergence where the real contract and the ritual verbal contract meet in their process of development. In the real contract there is the transfer of a thing and it is this transfer that gives rise to the obligation; in receiving a certain object that you hand over to me, I become your debtor. In the contract by ritual, no performance takes place; everything is done by words, usually accompanied by certain ritual gestures. These words, however, are pronounced in such a way that they have hardly left the lips of the promisor when they become, as it were, exterior to him; they are ipso facto withdrawn from his option; he can have no more effect on them; they are what they are and he can no longer change them. They have thus become a thing, in the true meaning of the word. But then they too become transferable; they too can be alienated in some way or, like the material things that make up our patrimony, transferred to another. Those expressions still in current use-to give one’s word, to pledge one’s word-are not mere metaphor: they correspond in fact to a parting with something, a genuine alienation. Our word, once given, is no longer our own. In the solemn agreement or contract by ritual, this transfer had already been achieved, but it was subject to the magic-religious processes we have mentioned, which alone made the transfer possible since it was these ceremonies that gave an objective character to the word and to the resolve of the promisor. Once this transfer sheds the ritual that was previously a condition of it and is rid of it, once it constitutes the whole contractual act in itself alone, then the consensual contract has come into existence. Now, given the contract by ritual as an existing fact, this process of cutting down and simplifying was bound to come
about of itself. On the one hand we see a diminishing of the verbal or other ritual ceremonies was brought about by a kind of decline from within, under the pressure of social needs that called for greater speed in the process of exchanges. On the other hand, the practical effects of the contract by ritual could be got adequately by means other than these ceremonies; it was enough for the law to declare as irrevocable any declaration of the will presented as such: this simplification was the more easily allowed of, since in the natural course of time the practices that had accumulated had lost a great part of their meaning and early authority. It is true that the contract so reduced could not have the same binding force as the contract by ritual since in the latter the individuals are, as it were, doubly bound-bound to the moral authority that intervenes in the contract, and bound one to the other. But it was at that very time that economic life needed some loosening process to slacken the stiff knots of contractual ties; if they were to be made with greater ease, it was imperative they should have a more secular character, and the act designed for making the ties had to be freed of all traces of ritual solemnity. It was enough to reserve the solemn contract for cases where the contractual relation had a special importance.
