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THE RELIGIOUS SOURCES OF GENERAL
CONTRACT LAW: AN HISTORICAL
PERSPECTIVE
Harold J. Berman *
In his dramatic, if not mystical, account of the birth, growth,
senescence, and death of American contract law, and of its ultimate
dissolution into the law of tort, Grant Gilmore certainly did not intend
to join forces with those who would later seize on his story as
evidence that both contract and tort, and, indeed, law all together, are
merely artificial devices to support a hierarchical and hegemonic
political structure and to facilitate economic exploitation of the weak
by the strong.' Yet Gilmore's expos6 of the logical circularities and
fallacies of contract doctrine (especially as it is taught in first-year
courses in American law schools) does add fuel to the already raging
fires of skepticism-skepticism not only about the coherence of individual
branches of the legal tree (contracts, torts, property, etc.) but
also about the validity of doctrinal legal analysis and ultimately of law
itself.
Arthur Corbin-Gilmore's mentor and the hero of his bookdid
not share that skepticism, although he strongly opposed the rigidities
of the then prevailing contract doctrine, especially as represented
in the teachings of his friend and rival, Samuel Williston. Unlike Williston,
Corbin was prepared to give a contractual remedy for losses
caused by reliance on a promise, and thus to bring contract and tort
into a common focus. He was also more willing than Williston to
expand concepts of fairness at the expense of strict liability for breach.
Nevertheless, Corbin did not doubt, and surely did not seek to undermine,
the coherence of contract law.
Although Gilmore went farther than Corbin in his critique of
traditional doctrine, he, too, was concerned to restructure contract
law, not to destroy it. Above all, Gilmore retained a commercial law-
* Woodruff Professor of Law, Emory University School of Law; Ames Professor of
Law, Emeritus, Hamard University School of Law. The valuable contribution which John
Witte, Jr., has made in the preparation of this article is gratefully acknowledged.
1. G. GILMORET, HE DEATH OF CONTRACT(1974). C', Dalton, An Essay in the
Deconstruction of Contract Doctrine, 94 YALE L.J. 997, 1012, 1040-43, 1067-71, 1084-87
(1985); Mensch, Freedom of Contract as Ideology, 33 STAN. L. REV. 753 (1981); Gabel and
Feinmann, Contract Law as Ideology, in THE POLITICSO F LAW: A PROGRESSIVCER ITIQUE
172, 177 (D. Kairys ed. 1982).
104 JOURNAL OF LAW & RELIGION [Vol. 4
yer's respect for contracts-in the plural; his attack was rather on the
notion of contract-in the singular-as an abstract entity, a thing-initself,
reflecting in its very essence the coherent body of concepts,
principles, and rules that had come to surround it: offer and acceptance,
consideration, formal requirements, defenses of fraud and duress
and mistake, excuse based on impossibility or frustration, and the
rest. This entire body of learning was now thought to be based on a
questionable theory of the priority of intent, or will, which in turn was
based on a questionable theory of the priority of party autonomy. It
was the logical symmetry of the doctrines and their basis in the willtheory
and the autonomy-theory of contract law that came under attack
in Gilmore's Death of Contract, as it had come under attack for
the preceding fifty years -in the first instance by those scholars who
called themselves "legal realists," but also by other legal scholars, like
Corbin, who opposed the Legal Realist Movement, and, most important,
by courts and legislatures which, by their decisions and statutes,
were breaking down the old categories in response to fundamental
changes in the economy itself.
Looking back at what has happened to contract law in action
during the twentieth century, and especially to accepted contract
practices, one is struck by the fact that the priorities of contractual
intent and party autonomy, which still form the basis of contract law
in theory, no longer correspond to reality in most situations. Contracts
of adhesion, regulated contracts, contracts entered into under
economic compulsion, and other types of prefabricated contractual
arrangements, are now typical rather than exceptional. Doctrines of
frustration and of substantial performance have been greatly expanded.
The defense of unconscionability has become a reality in
consumer sales and is a potential obstacle to contractual autonomy in
other types of transactions as well. Duties of cooperation and of mitigation
of losses have begun to change the nature of many types of
contractual relationships. Promissory estoppel has spawned nonpromissory
estoppel, notably in the form of implied warranties which,
though contractual in theory, nevertheless "run with the chattel9'-as
someone has said, "half way around the world."
The breakdown of traditional contract law in practice has given
some support to those legal theorists who contend that all law must
be judged not in terms of doctrinal consistency but in terms of social
consequences. Some of these theorists go so far as to contend that the
very effort to apply rules on the basis of their consistency with other
legal rules, or their conformity to underlying legal principles, serves
only to obfuscate the political and economic functions that every such
purported application inevitably performs.
To understand the significance of the attack that has been
launched against general contract law in the past two generations,
however, one must go back much farther in time than Gilmore went.
One must also go much farther in space. Gilmore imagined that
Christopher Columbus Langdell and Oliver Wendell Holmes, Jr., invented
the modern system of contract doctrine which Williston later
refined. In fact, Langdell in 1870 carried over into American legal
thought ideas that had been propounded in France, Germany, England,
and elsewhere for a hundred years. The Enlightenment of the
late eighteenth century stimulated the desire to rationalize and systematize
the law in new ways. In England, Jeremy Bentham called
for the "codification"-a word of his own creation-f the various
branches of law. In the wake of the French Revolution, France
adopted separate codes for civil law, civil procedure, criminal law,
criminal procedure, and commercial law. Although England and the
United States, like Germany, resisted codification of substantive civil
law, nevertheless the idea was taken up everywhere in the West that
the entire body of civil law, and, within it, its component parts,
should be rationalized and systematized anew, whether in a code (as
in France) or in scholarly treatises (as in Germany) or in court decisions
collected by law teachers (as in England and the United States).
Indeed, in the United States, a generation before Langdell, William
Story wrote A Treatise on the Law of Contracts Not Under Seal (1844)
and Theophilus Parsons wrote The Law of Contracts (1853).
And so Langdell and others did for American contract law what
Powell (1 790), Chitty (1 826), Addison (1 847), and Leake (1 867) had
done for English contract law, and, in effect, what the French commentators
on the Code Civil and the German Pandectists had done
for contract law in their respective countries. They attempted to reduce
it to a set of concepts, principles, and rules which would be applicable
to all contracts.
It is, however, a great mistake to suppose that this was the first
time that any such attempt had been made, and an even greater mistake
to suppose that the nineteenth century systematizers of contract
law simply invented the concepts, principles, and rules upon which
they founded their new system. The "general law of contract" was, in
fact, invented much earlier, and the nineteenth century jurists drew
upon the older learning, and the older tradition, in establishing their
new version of it.2
Yet the nineteenth century jurists differed from their predecessors
in several crucial respects. Perhaps the most important of these
was their concern to cut the general law of contract loose from its
moorings in a religious-more specifically, a Christian-belief system.
They sought to replace those moorings with their own Enlightenment
belief system, based on rationalism and individualism. It was that Enlightenment
faith which found expression, in nineteenth century contract
law, in the overriding principles of freedom of will and part
autonomy. Those principles were applied, however, to an already existing
system of contract law, many of whose basic features were
preserved.
I. THE ORIGINSO F MODERNC ONTRACTL AWIN THE CANON
LAWOF THE ROMANC ATHOLICC HURCH
Modern contract law originated in Europe in the late eleventh
and early twelfth centuries. It was that epoch that gave birth to the
modern Western belief in the autonomy of law, its professional character,
its integrity both as a system of institutions and as a body of
learning, and its capacity for organic growth over generations and
centuries; it was then that consciously integrated systems of law came
to be formed, first in the church and then in the various secular polities-
kingdoms, cities, feudal domains, mercantile communities; and
it was then that various branches of law, within those systems, were
first given structure: criminal law, family law, corporation law, mercantile
law, and other^.^
Starting in the last two decades of the eleventh century, the glossators
of Roman law began to construct out of Justinian's massive
texts, newly discovered after more than five hundred years of virtual
oblivion, a coherent corpus juris that had only been adumbrated in the
original writings. (Justinian had not called his texts a corpus juris.)
Equally important, the canon lawyers began to create, partly with the
help of the new Romanist legal science, a consciously integrated legal
system to be applied in the newly created hierarchy of ecclesiastical
administrative and judicial agencies, culminating in the papal curia.
2. See Gordley, Book Review, 89 HARV. L.REv. 452, 453-54 (1975) (reviewing G. GILMORE,
THE DEATH OF CONTRACT(1974)). Gordley stresses the Romanist contract law of the
twelfth century and thereafter. The canon law of contract that emerged in those centuries was
in some ways even more integrated and systematized. See infra, section I, on canon law.
3. This is the main theme of H. BERMANL, AWAND REVOLUTIONT: HE FORMATION
OF THE WESTERNL EGALT RADITION(1 983).
1031 GENERAL CONTRACT LAW 107
Eleventh and twelfth century Roman law (I shall henceforth call it
"Romanist law," to distinguish it from the earlier Roman law whose
vocabulary and rules it selectively adopted and transformed) was not
as such the positive law of any jurisdiction; it was law taught as ratio
scripta in the emerging universities of Europe and it was drawn upon
selectively by every jurisdiction, ecclesiastical and secular, as a subsidiary
law, to fill gaps, to interpret, and sometimes to correct the positive
law. Canon law, on the other hand, after 1075, was the positive
law of the church, replenished by papal decrees and decretals and by
the legislation of church councils; it was directly applicable throughout
Western Christendom to most aspects of the lives of the clergy
and to many aspects of the lives of the laity.4
To say that modern contract law was gradually formed in the
late eleventh and the twelfth centuries is not to say that there were
not, before then, contracts, in the sense of legally binding agreements.
There was, however, among the peoples that inhabited Western Europe
in the year 1000, no general principle that a promise or an exchange
of promises may in itself give rise to legal liability. Legal
liability attached to promises only if they were embodied in formal
religious oaths, which were almost always secured by some kind of
pledge. The obligation that was enforced was not the mutual contractual
obligation of the parties but the oath, that is, the obligation to
God (or, before Christianity, to the gods); the legal liability that was
imposed was the forfeiture of the pledge. Originally the pledge might
consist of the surrender of the oath-taker's own person, symbolized in
the formal transfer of his faith fides facta) through the ritual of shaking
hands. Alternatively, other persons could be pledged as hostages,
and eventually property could also be pledged as ~ecurity.A~ sharp
distinction was made between the oath-taker's obligation (Schuld)
and his liability (Haftung). The breach of obligation triggered liability
but was not itself a basis of liability. In itself it had no legal consequences,
though it had spiritual consequences and could be punished
as a sin in the penitential processes of the local monastic order or
4. Pope Gregory VII's revolutionary document of 1075, Dictates of the Pope (Dictatus
pupae), declared for the first time the independence of the Roman church from secular rulers
and the supremacy of the papal curia over all ecclesiastical courts. See BERMAN, supra note 3,
at 94-99. Though the Dictates were never made a formal part of the canon law, they formed
the basis of many of its main principles.
5. See Berger, From Hostage to Contract, 35 ILL.L. REV. 154 (1940) and literature cited
therein; Barmann, Pacta sunt servanda: Consideration sur I'histoire du contrat consensual, REVUE
INTERNATIONALE DE DROIT COMPARE 6-7 (1961).
- -
parish prie~thood.T~h e legal consequences were wholly interwoven
with the pledge, and consisted simply of its forfeiture. If forfeiture
was resisted, resort was had either to conciliation or to blood-feud.
Germanic law (including Frankish, Anglo-Saxon, Burgundian,
Lombard, and many other varieties of clan law) also recognized a
duty of restitution arising from a half-completed exchange: a party
who had transferred property to another was entitled to receive from
the other the purchase price or other equivalent. This also was not a
contractual remedy in the modern sense of the word "contractual."
The older Roman law of contracts, reflected in Justinian's compilation,
was, to be sure, much more sophisticated than the Germanic
law. Names were provided for various-ways of forming contracts and
for various types of contracts that fell within those forms. Thus certain
named ("nominate") contracts were formed by following a prescribed
verbal formula, others by formal entry in certain account
books, a third category by delivery of the object covered by the contract,
and a fourth by informally expressed consent. The fourth category
included sale, lease, partnership, and mandate (a form of
agency). Unnamed ("innominate") contracts included a gift for a gift,
a gift for an act, an act for a gift, and an act for an act. Innominate
contracts were actionable only after one party had performed his
promise. In addition to an elaborate classification of categories and
types of contracts, the Justinian texts included hundreds of scattered
rules--opinions of jurists, holdings in decided cases, decrees of emperors,
and so forth---concerning their operation.
Nowhere, however, did the texts of Justinian contain a systematic
explanation of the reasons for the rules of contract law or for the
classifiiation of types of contracts. Nowhere was there stated a theory
or even a general concept of contractual liability as such. Law in the
Justinian texts, including those parts of it which we think of today as
"contract" law, was not only unsystematized but casuistic in the extreme;
its rules were sometimes classified, but the taxonomy was not
explained in theoretical terms.'
The glossators of the late eleventh and the twelfth centuries, in
indexing the Roman texts, collected the various statements of the
older Roman jurists on contracts and, in glossing them, elaborated
6 See J T MCNEILLAND H. GAMERM, EDIEVALH ANDBOOKSOF PENANCE:A
TRANSLATIOONF THE PRINCIPALLI BRIP OENITENTIALAENSD P ELECTIONS FROM RELATED
DOCUMENTS (1938) See BERMAN, supra note 3, at 68-84.
7. See J. P DAWSONT, HE ORACLEOS F THE LAW (1968), 114 ff. (1968); F. SCHULZ,
THEH ISTORYO F ROMANL EGALS CIENCE(1 946); BERMANs,u pra note 3, at 127 ff.
1031 GENERAL CONTRACT LAW 109
general concepts and principles that they found to be implicit in them.
The canonists went even farther, offering a general theory of contractual
liability and applying that theory to actual disputes litigated in
the ecclesiastical courts.
The canonists developed for the first time the general principle
that an agreement as such-a nudum pactum-may give rise to a civil
action. Drawing partly on the texts of Justinian but also on the Bible,
on natural law, on the penitentials, on canons of church councils and
of bishops and popes, and on Germanic law, the canonists drew a
conclusion which none of those sources, taken individually, had ever
before drawn: that consensual obligations as such are, as a general
principle, binding not only morally but also legally, even though they
were entered into without any formalities. By legally binding, the
canonists meant that the promisee had a right against the promisor,
enforceable in an ecclesiastical court, to the performance of the promise
or else to compensation for losses. This general principle was in
sharp contrast to the then prevailing Germanic law, under which a
contractual obligation (Schuld) was in itself unenforceable, and a
pledge accompanying such an obligation (Haftung) was only enforceable
if its transfer had been carried out with the proper formalities.
The new principle of the canon law erased the Germanic distinction
between obligation and liability. It was also in sharp contrast to the
rules of the earlier Roman law set forth in the Justinian texts, under
which formalities were essential to the validity of most types of contracts,
part performance was essential to the validity of innominate
contracts, and special requirements existed for the limited class of
contracts that could be concluded informally.
The general principle of contractual liability arising from agreements,
developed by the canonists, rested, in the first instance, on the
theory that to break a promise is a sin. A sin, however, in and of
itself, gave rise not to legal liability but to penitential discipline; it was
to be confessed and repented in the internal forum of the church.
Legal liability, imposed in the external forum, that is, in the bishop's
court, was based not only on the sin of the obligor but also on the
protection of the rights of the obligee. This required a new development
in moral theology, which was closely connected with new developments
in political, economic, and social life.
The twelfth century witnessed an enormous expansion of commerce,
including economic transactions between ecclesiastical corporations.
In addition, the ecclesiastical courts sought and obtained a
large measure of jurisdiction over economic contracts between lay110
JOURNAL OF LAW & RELIGION [Vol. 4
men, where the parties included in their agreement a pledge of faith;
the faith that was pledged, it was now said, created an obligation not
only to God but also to the church. To justify enforcement of contracts
in the external forum of the church it was necessary to add to
the theory that to break a promise is a sin the theory that the claim of
the party who has suffered from such breach is morally justified. The
canonists developed the two theories together. They concluded that a
morally binding promise should also be legally binding if it is part of
an agreement (apactum, or consensual obligation) that is itself morally
justified. The object or purpose (causa) of the contract had to be
reasonable and equitable.
Based on the theory that contracts should be legally binding if
they serve a reasonable and equitable cause, the twelfth-century canonists,
with the help of their contemporary Romanists, developed a
whole series of principles which, taken together, justify the characterization
of "general contract law." Some of these principles were the
follo~ing:~
-that agreements should be legally enforceable even though
they were entered into without formalities (pacta sunt servanda), provided
that their purpose (causa) was reasonable and equitable;
-that agreements entered into through the fraud of one or both
parties should not be legally enforceable;
-that agreements entered into through duress should not be legally
enforceable;
-that agreements should not be legally enforceable if one or
both parties were mistaken concerning a circumstance material to its
formation;
-that silence may be interpreted as giving rise to inferences concerning
the intention of the parties in forming a contract;
-that the rights of third-party beneficiaries of a contract should
be protected;
-that a contract may be subject to reformation in order to
achieve justice in a particular case;
-that good faith is required in the formation of a contract, in its
interpretation, and in its execution;
-that in matters of doubt rules of contract law are to be applied
in favor of the debtor (in dubiis pro debitore);
-that unconscionable contracts should not be enforced.
8. See Barmann, supra note 5, at 18-25; BERMANs,u pra note 3, at 245-50.
1031 GENERAL CONTRACT LAW 1 1 1
These principles of the canon law of contract embodied what
may be called a moral theory of contract law.
The last point, relating to unconscionability, deserves further
elaboration. Equity, for the twelfth-century canonists and Romanists
alike, required, in contracts, a balancing of gains and losses on both
sides. This principle took form in the doctrine of the just price. Both
the Romanists and the canonists started with the premise that normally
the just price is the common estimate, that is, the market price;
a sharp deviation from the market price was prima facie contrary to
reason and equity. Usury, which was defined as a charge for the loan
of money in excess of the normal rate of interest, was also condemned
by both Romanists and canonists as a breach of market norms.9
The canonists, however, in contrast to the Romanists, were more
concerned with another aspect of a sale in excess of the just price, or a
charge for money in excess of normal interest, namely, the immoral
motive that often underlay such practices. Profit making in itselfcontrary
to what has been said by many modern writers-was not
condemned by the canon law of the twelfth century. To buy cheap
and sell dear was considered to be proper in many types of situations
-as where one's property had increased in value or a craftsman had
improved an object by his art or a merchant resold goods at a profit in
order to maintain himself and his dependents. What was condemned
by the canon law was "shameful" profit (turpe lucrum, "filthy lucre"),
and that was identified with avaricious business practices. Thus for
the canonists, rules of unfair competition, directed against breach of
market norms, were linked also with rules of unconscionability, directed
against oppressive transactions.
It should not come as a surprise to us, living in an age when an
economic interpretation of history is often taken for granted, that the
newly developing contract law of the Roman Catholic Church provided
an important source of support for the rapid expansion of capitalist
commercial and financial activities in western Europe in the late
eleventh, twelfth, and thirteenth centuries. Perhaps more interesting,
however, is the other side of the coin: that within the church, which
embraced almost the entire population of western Europe, there was
articulated at that time a public morality, based on a shared belief in a
transcendent good which informed the actual development of the new
law of contract.
9. Id. at 247-49; Gordley, Equality in Exchange, 69 CALIF. L. REV.1587, 1638 (1981).
See J . NOONANJ,R., THES CHOLASTAICN ALYSIOSF USURY105 ff. (1957).
112 JOURNAL OF LAW & RELIGION [Vol. 4
In subsequent centuries, many of the basic principles of the canon
law of contract were adopted by secular law and eventually came
to be justified on the basis of the will-theory and party autonomy. It
is important to know, however, that originally they were based on a
sin-theory and a theory of equity. Our contract law did not start from
the proposition that every individual has a moral right to dispose of
his property by means of making promises, and that in the interest of
justice a promise should be legally enforced unless it offends reason or
public policy.lo Our contract law started, on the contrary, from the
theory that a promise created an obligation to God, and that for the
salvation of souls God instituted the ecclesiastical and secular courts
with the task, in part, of enforcing contractual obligations to the extent
that such obligations are just.
11. THE PURITANC ONCEPTOF CONTRACTAS COVENANTAND
OF STRICTL IABILITYFO R BREACH
If we jump from Roman Catholic Christendom in the late eleventh,
twelfth, and thirteenth centuries to Anglican and Puritan England
in the seventeenth and eighteenth centuries, we confront a
startling paradox. On the one hand, the political, economic, and social
situation has changed drastically. On the other hand, the terms
of the debates concerning law and government have remained remarkably
stable; that is, the same issues continue to be addressed,
although the emphasis is different and the answers are different.
Brian Tierney has recently shown the remarkable continuity of
Western constitutional theory from the twelfth to the seventeenth
centuries-from Gratian and John of Salisbury to Althusius and
Locke. "The judicial culture of the twelfth century," Tierney writes,
". . . the works of the Roman and canon lawyers . . . formed a kind of
seedbed from which grew the whole tangled forest of early modern
constitutional thought."" Tierney's study is a challenge to legal historians
to show that continuity existed in the realm not only of constitutional
theory but also of criminal and civil law, including the law of
contracts.
Prior to the sixteenth century the law in England governing what
we would today call contractual liability had been divided among various
jurisdictions, each with its own procedures and its own legal
10. That our modern contract law is based on these propositions is a major thesis of C.
FRIEDC, ONTRACATS PROMISEA: THEORYOF CONTRACTUAOLB LIGATIO(N1981).
11. B. TIERNEYR, ELIGIONL, AWAND THE GROWTHO F CONSTITUTIONATHL OUGHT,
1150-1650 1 (1982).
1031 GENERAL CONTRACT LAW 113
rules. The English ecclesiastical courts, which had a wide jurisdiction
over contract disputes involving not only clerics but also laymen, applied
the canon law of the Roman Church. In the numerous cities
and towns of England, as well as at fairs, mercantile courts applied a
customary commercial law, sometimes called the law merchant,
whose general features were more or less uniform throughout Europe.
English county courts as well as feudal and manorial courts enforced
various types of agreements, applying chiefly local and feudal or manorial
custom. The royal courts of Common Pleas and King's Bench
resolved contract disputes chiefly through the common law actions of
debt, detinue, account, deceit, covenant, and trespass on the case. In
the fourteenth and fifteenth centuries the chancellor also acquired a
wide jurisdiction over contracts in cases which fell outside the common
law (such as many types of par01 promises, uses, actions by
third-party beneficiaries) or which the common law courts were unable
to decide fairly (for example, because of pressures exerted by
powerful persons or because of inadequacy of common law remedies).
The chancellor's "court of conscience" (as it was often called in those
centuries) drew upon canon law, mercantile law, common law, and its
own ingenuity and sense of fairness.
All the diverse types of law applicable to contracts were strongly
influenced by the religious beliefs that prevailed during those centuries
in England as in the other countries of Western Christendom. In
the canon law, as we have seen, contractual liability was based ultimately
on the sin of the defaulting promisor and the right of the
promisee to require performance or compensation insofar as the
agreement served a reasonable and equitable purpose. The law
merchant stressed the element of trust among merchants and, in the
event of dispute, their need for a speedy, informal procedure and for
decisions based on mercantile reasonableness. The chief common law
actions relating to agreements were founded on the concept of moral
wrong as expounded in Roman Catholic theology: debt, detinue, and
account presupposed the wrongfulness of retaining money or property
that was due the other party to a half-completed exchange; deceit presupposed
an intentional wrong; covenant presupposed the wrongfulness
of violating a solemn oath; assumpsit-more accurately, trespass
on the case upon an assumpsit--developed in the fifteenth century to
permit recovery for the wrongful act ("trespass" is, of course, Law
French for the Latin transgressio, "sin") of negligently performing an
undertaking (misfeasance). In Chancery, the influence of moral theology
was even more apparent, if only because the chancellor, in those
114 JOURNAL OF LAW & RELIGION [Vol. 4
centuries, was almost invariably an archbishop or bishop, quite familiar
with the basic features of the canon law, and his decisions were
often grounded expressly in Christian teaching. Indeed, his jurisdiction
may be said to have rested on three principles that were attributed
to Christian faith: the protection of the poor and helpless, the
enforcement of relations of trust and confidence, and the granting of
remedies that "act on the person" (injunctions, specific performance,
and the like).
In the sixteenth and early seventeenth centuries, the English law
applicable to contracts underwent significant development. After the
Act of Supremacy (1534), the ecclesiastical courts, now subordinate
to the Crown, lost a substantial part of their jurisdiction over matters
of property and commerce. The Tudor monarchs created an array of
new "prerogative" courts, including the Court of Star Chamber, the
High Court of Admiralty, the Court of Requests, and others, and also
transformed the chancellor's court into the High Court of Chancery;
with the rapid growth of both domestic and overseas trade, these
courts exercised an enormously expanded commercial jurisdiction,
applying to commercial cases the traditional law merchant as well as
many rules and concepts derived from canon law and from Romanist
legal science. Partly, no doubt, in order to meet the new competition,
and in the spirit of the times, the common law courts also began to
reform the action of assumpsit, making it available in certain types of
cases of nonfeasance, and simplifying procedures in order to make the
action a less unwieldy instrument for settling commercial disputes. In
Slade's Case (1602), assumpsit was made available in cases of halfperformed
contracts and half-performed sales of goods, which previously
had been subject to the archaic remedies of debt and detinue.
By that time the common law courts had also elaborated a doctrine of
consideration, similar to that of chancery and of the canon law, by
which the validity and enforceability of an undertaking-whether in
the case of the half-completed exchange or in the case of a simple
promise-was tested in terms of the circumstances which caused or
motivated it. l2
Despite the significant changes in the law of contracts which
took place in the sixteenth and early seventeenth centuries, in all the
legal systems that prevailed in England, including the common law,
the underlying presuppositions of contractual liability remained what
12. See A. W. B. SIMPSONA, HISTORYOF THE LAWOF CONTRACTT:HER ISEO F THE
ACTIONOF ASSUMPSIT 297-302 (Slade's Case) and 316-488 (consideration) (1975).
1031 GENERAL CONTRACT LAW 115
they had been in the earlier period. Breach of promise was actionable,
in the first instance, because-or if-it was a wrong, a tort, and in the
second instance, because--or if-the promisee had a right to require
its enforcement in view of its reasonable and equitable purpose. With
some qualifications, the common lawyers accepted these premises no
less than the canon lawyers. Prior to the latter part of the seventeenth
century, assumpsit was essentially an action for breach of (unilateral)
promise, not breach of (bilateral) contract in the modern sense, and
the required consideration was conceived in terms of the moral justification
and purpose of the promise. The action of covenant, on the
other hand, was not seen to be a contractual remedy; duress was a
defense but fraud in the inducement was not, although relief might be
obtained from the Chancellor. The fact that the common law courts
used distinctive procedures in enforcing promises, applied distinctive
technical rules (often required by the different procedures), and gave
only limited contract remedies, reflected the division between the ecclesiastical
and the secular spheres and the subdivision of the secular
sphere into plural jurisdictions. These divisions and subdivisions were
themselves associated with the specific religious worldview that had
emerged in the eleventh and twelfth centuries.
The Puritan Revolution of 1640 to 1660 established the
supremacy of the common law over its rivals. In 1641 the Long Parliament,
dominated by Puritans, abolished the prerogative courts.
Eventually a separate admiralty jurisdiction survived, but it was
greatly restricted in its scope and was subordinated to the common
law. Chancery also survived but it, too, suffered a reduction of jurisdiction
and was no longer able to assert its superiority over Common
Pleas or King's Bench. Under the Puritans the common law courts
heard cases of breaches of promise to marry, actions for legacies, and
other ecclesiastical causes, on the ground that the ecclesiastical courts
were not sitting. After 1660 some of that jurisdiction was retained,
and the ecclesiastical courts, like the others, were ultimately bound by
the common law as interpreted by Common Pleas and King's Bench.
With respect to commercial matters, the vast increase in the
amount of variety of cases that came before the common law courts
required an expansion and revision of their remedies and doctrines.
Especially after 1660, when some of the most important reforms of
the Puritan period were confirmed under a restored, chastened, and
limited monarchy, the common law courts gradually adopted a great
many of the remedies and rules that had been elaborated in the previous
hundred years by the prerogative courts and by Chancery.
116 JOURNAL OF LAW & RELIGION [Vol. 4
Other changes, however, in the common law of contracts, as it
developed in the latter seventeenth and eighteenth centuries,13 cannot
be attributed to the adoption or adaptation of doctrines previously
elaborated in rival jurisdictions. There was, in fact, a shift in some of
the basic presuppositions of contract law that had developed over the
previous five centuries. This shift may be summarized in three interrelated
propositions.
First, the underlying theory of liability shifted from breach of
promise to breach of a bargain. The emphasis was no longer placed
primarily on the sin, or wrong, of the defaulting promisor but rather
on the binding character of an agreement as such and the disappointment
of the expectations of the promisee. This change raised more
acutely than before the question whether the promises of the two sides
were to be treated as independent or interdependent. The tendency of
the courts in the century from 1660 to 1760 was to treat them increasingly
as dependent.14
Second, the emphasis on bargain was manifested in a new conception
of consideration. The older conception of consideration as
purpose or motive or justification for a promise (analogous to the canonists'
conception of causa) gave way to a conception of consideration
as the price paid by the promisee for the promise of the promisor.
This change raised more acutely than before the question of the adequacy
or inadequacy of the consideration. The tendency of the courts
in the century after the Puritan Revolution was increasingly to en-
13. Simpson's definitive study, supra note 12, is concerned with "the rise" of assumpsit,
which, he concludes, had risen by the early 1600s. He therefore deals only cursorily with
developments after the 1620s and 1630s. P. ATIYAH, on the other hand, in his volume THE
RISEAND FALLOF FREEDOMOF CONTRACT(1979), is concerned with "the rise" of freedom
of contract after 1770, and deals only cursorily with developments prior to that date. Similarly,
M. HORWITZT, HE TRANSFORMATIOONF AMERICANL AW, 1780-1860 (1977), makes broad
characterizations of English and American law as it existed before 1780 without, however,
presenting substantial evidence for them. Partisans of the approach taken by Simpson, which
is the traditional approach of English legal historians, are able to show that the transformation
of "medieval" to "modern" contract doctrine took place long before the late eighteenth century.
See Simpson, The Horwitz Thesis and the History of Contract, 46 U. CHI. L. REV. 533
(1979). On the other hand, partisans of the approach taken by Atiyah and Horwitz, which
emphasizes the origins of contemporary contract ideology, though they often ignore or misinterpret
earlier doctrinal developments, are able to show that there was an important ideological
shift in the nineteenth century. Both sides would be greatly aided by a systematic
exploration of the terra incognita of English legal development in the century and a half after
the outbreak of the Puritan Revolution. Some steps toward filling this hiatus have been taken
by S. STOLJARA, HISTORYO F CONTRACTAT COMMONLAW( 1975) and Francis, The Structure
of Judicial Administration and the Development of Contract Law in Seventeenth-Century
England, 83 COLUM. L. REV. 35 (1983). See infra notes 14, 15, 18, 19.
14. See Stoljar, supra note 13, Chapter 12; Francis, supra note 13, pp. 122-125; Holdsworth,
IV History of English Law, 64, 72, 75 (1924).
1031 GENERAL CONTRACT LAW 117
force agreements regardless of the inadequacy of the consideration. l5
Third, the basis of liability shifted from fault to absolute obligation.
The promisee was entitled to compensation for nonperformance
with the terms of the bargain itself; excuses for nonperformance were
to be confined, generally speaking, to those provided for within those
terms.
The shift from a moral theory to what may be called a bargain
theory of contract is well illustrated in the famous case of Paradine
and Jane, decided in 1647, at the height of the Puritan Rev~lution.'~
A lessor sued a tenant for nonpayment of rent. The tenant defended
on the ground that, due to the occupation of the leased premises by
Prince Rupert's army, it was impossible for him to enjoy the benefit of
his contract and therefore he should be excused from liability. He
cited in his defense canon law, civil (i.e., Roman) law, military law,
moral law, the law of reason, the law of nature, and the law of nations.
Disregarding these authorities, the court held that by the common
law of England a lessee for years is liable for the rent, even
though the land be impossible to occupy. Although as an action of
debt for rent the case could have been decided solely on the basis of
the law of leasehold tenure, the court enunciated a broad principle of
strict contractual liability. It said that where a duty is created by law,
the party will be excused if he is not at fault, "but when the party by
his own contract creates a duty or charge upon himself he is bound to
make it good, if he may, notwithstanding accident or inevitable necessity,
because he might have provided against it by his contract."17
One may find earlier cases that suggest a doctrine of strict contractual
liability.'' Indeed, one may show that all the doctrinal ingre-
15. Simpson, History of Contract, supra note 13, at 446, shows that inadequacy of consideration
had not been recognized as a defense at common law in medieval times, but that that
was partly due to the fact that until some time after the sixteenth century "the conception of
consideration was not that of a price for a promise, but a reason for a promise." In other
words, prior to the late seventeenth century the reason for the promise had to be "adequate,"
even though theprice paid might have been relatively low or even nominal. This distinction is
often ignored by those who would trace an unbroken continuity in the doctrine of consideration
from the sixteenth to the eighteenth centuries.
16. Style 47, 82 Eng. Rep. 519 (1647); Aleyn 26, 82 Eng. Rep. 897 (1648). Most discussions
of the case use only the report in Aleyn. The report in Style needs also to be read in
order to grasp the full significance of the case.
17. Aleyn 26, 82 Eng. Rep. 897 (1648).
18. See Simpson, History of Contract, supra note 13, at 31-33. Simpson shows that the
sixteenth-century writer Brooke had distinguished the effect of a private contract, where liability
was self-imposed, from the effect of the general law, and had stated that a man by private
contract could make himself strictly liable, and that at least one case had adopted that point of
view. He states that "in the leading case of Paradine v. Jane (1648) Brooke's theory eventually
triumphed." See infra note 19.
118 JOURNAL OF LAW & RELIGION [Vol. 4
dients of the modern action for breach of contract were present, in
embryo, in the action of assumpsit as it developed in the late 1500s
and early 1600s.19 In the history of legal doctrine, it is usually not
difficult to find in some earlier decision or text a source for every new
development. Yet it is fair to say that before Paradine and Jane no
English court had ever laid down the theory of absolute obligation for
breach of a bargained exchange, namely, that obligation in contract is
distinguished from obligation in tort by the fact that the parties to a
contract set their own limits to their liability; and moreover, that after
Paradine and Jane that theory was never effectively challenged.
On the other hand, some historians of English law have said that
it "was not until the eighteenth century that a serious search for a
general theory of contract was ~ndertaken,"~a' nd it was not until the
nineteenth century that there emerged a bargain theory of contract,
based on agreement of the wills of autonomous parties.21 These statements
depend for their validity on a special meaning of the phrase
"general theory of contract." It can hardly be maintained that prior
to the eighteenth century contractual liability was not considered to
be based on a coherent set of principles, including the principle of the
binding force of a bargained agreement expressing the intent of the
parties.
The moral theory of contractual liability, which linked legal liability
closely with the sin or wrongfulness of a breach of promise, on
the one hand, and the equitable purpose of the promise or exchange of
promises, on the other, was attacked in the seventeenth century in
England by Puritans, including both lawyers and theologians. The
attack was part of a revulsion against the discretionary justice of the
chancellor. In the words of the great seventeenth century Puritan
legal scholar and practitioner John Selden, "Equity in law is the same
as the spirit is in religion, what everyone pleases to make it;" and
again, "Equity is a roguish thing . . . ; equity is according to the conscience
of him that is chancellor . . . . It is all one as if they should
make the standard for the measure a chancellor's foot."22 The distrust
of equity was linked with a strict view of contractual liability.
Of contracts Selden wrote: "We must look to the contract; if that be
19. This is the burden of Simpson's book. See supra note 14. Yet Simpson is careful to
distinguish between the cases and writings that anticipate the establishment of a doctrine and
those in which the doctrine eventually "triumphs."
20. T.F.T. PLUCKNETTA, CONCISEH ISTORYO F THE COMMONL AW652 (5th ed. 1956).
21. See Atiyah, supra note 13; and Horwitz, supra note 13.
22. SELDENIANAOR, THE TABLET ALKO F JOHNS ELDENE, SQ.45-46 (1789). Selden's
Table Talk was first compiled in 1654 and first published in 1689.
1031 GENERAL CONTRACT LAW 119
rightly made, we must stand to it; if we once grant [that] we may
recede from contracts upon any inconveniency that may afterwards
happen, we shall have no bargain kept. . . . [Hlow to make our contracts
is left to ourselves; and as we agree upon the conveyance of this
house, or this land, so it must be. If you offer me a hundred pounds
for my glove, I tell you what my glove is-a plain glove-pretend no
virtue in it-the glove is my own-I profess not to sell gloves, and we
agree for an hundred pounds-I do not know why I may not with a
safe conscience take it."23
It was not the lawyers, however, but the theologians, who articulated
the underlying premises of the new bargain theory of contractual
liability. Three basic tenets of seventeenth century Puritan
theology may be identified as bearing directly on that theory. (a) The
first was the belief in a sovereign God of order, who requires of his
people obedience and self-discipline, on pain of eternal damnation.
b) The second was the belief in the total depravity of man and total
dependence for salvation on God's grace. (c) The third was the belief
in a contractual ("covenantal") relationship between God and man
whereby God has bound himself to redeem his people in return for
their voluntary undertaking to submit to his will.
(a) "God being the God of order and not of confusion hath
Commanded in his word and put man into a Capasitie in some measure
to observe and bee guided by good and wholesome lawes," said a
Massachusetts Puritan in 1658.24 As John Witte has put it, "The austere
ethical demands of the Puritan, frugality of time and money, severe
church discipline, vocational ambition, and reformist zeal-all
were tied to theological assumptions. Because the Puritan was a part
of the divine unfolding of the providential plan of the world, he
viewed his work as holy and he sought to perform as God's agent
impeccably." By the same token, "rules and laws were essential not
only to arouse people to obedience to God and to guide them in the
paths of virtue but also to bring English society to good order and
discipline and to reform it."25
The Puritans drew a connection between the belief in a God of
order, who governs by strict rules and who requires his subjects also
to govern themselves by "good and wholesome lawes," on the one
hand, and the belief in strict contractual liability, on the other. " . . .
23. Id. at 37-38.
24. The Address to the General Laws ofNew Plymouth (1658), 11 RECORDSOF THE COLONY
OF NEW PLYMOUTHL AWS, 1623-82 72 (Pulsifer ed. 1861).
25. J. WITTE, NOTESO N ENGLISHP URITANISMA ND THE LAW (unpublished, 1985).
120 JOURNAL OF LAW & RELIGION [Vol. 4
[W]e must keep covenant with each other, when we have contracted
one with another," wrote the Puritan leader Ireton in 1647. "Abandon
this principle and the result will be chaos."26 The context of
Ireton's statement was a debate among Puritan leaders concerning the
duty of submitting to an unjust law enacted by Parliament, in the
light of the "contract'' between Parliament and the people as ruler
and ruled. However, the analogy was often drawn in that debate between
social contract and private contract. As Selden wrote, "To
know what obedience is due to the prince, you must look into the
contract between him and his people; as if you would know what rent
is due from the tenant to the landlord, you must look into the lease.
When the contract is broken, and there is no third person to judge,
then the decision is by arms."27
(b) The belief in the total depravity of man, his inborn lust for
power the corruption not only of his will but also of his reasonreinforced
the Puritan's emphasis on strict adherence to rules, including
rules agreed upon by parties to a contract. As evidenced in Selden's
caustic remarks, quoted above, about the untrustworthiness of
the chancellor's conscience, the Puritan view of human nature (including
the human nature of judges) did not encourage a resort to
general ideas of equity or fault for the resolution of conflict. The Puritan
preferred to rely upon something that seemed to him to be more
objective, more certain, namely, the will of the parties as manifested
in the words of the contract-just as he preferred in matters of personal
morality to rely on the words of Scripture rather than on the
ratiocinations of moral philosophers.
(c) Perhaps the most direct link between the doctrine of absolute
contractual obligation and the Puritan belief system is to be
found in the Puritan concept of the covenants-a word meaning, at
that time, simply "agreements"-which God has entered into with
men. As Witte has written:
26. Quoted in J.W. GOUGH, THE SOCIAL CONTRACT: A CRITICAL STUDY OF ITS DEVELOPMENT
90 (1936).
27. Quoted id. at 92. (Note that Selden's analogy was with the law of leases, in which the
doctrine of absolute obligation was firmly established.) The obligation of both social contract
and private contract was traced to the Bible by the Puritan covenant theologian Samuel Rutherford,
who wrote that the king and his people should not fight with each other just as "two
merchants should keep faith one to another, both because God hath said he shall dwell in
God's mountain who sweareth and covenanteth, and standeth to his oath and covenant,
though to his loss and hurt (Psalm xv) and also because they made their covenant and contract
thus and thus." S. RUTHERFORDL, EX, REX, OR THE LAW AND THE PRINCE2 01 (1644;
reprint edition 1982). John Locke drew heavily on Rutherford for his doctrine of social
contract.
1031 GENERAL CONTRACT LAW 121
Traditionally, theologians, both Protestant and Catholic, had
discussed the Biblical covenants: the Old Testament covenant of
works whereby man, through his obedience to God's law, is promised
his salvation; and the New Testament covenant of grace
whereby man, through his faith in the incarnation, resurrection,
and atonement, is promised eternal salvation. The covenant doctrine
in this earlier period, however, had remained a footnote to the
more important doctrines of God, man, and salvation. In the late
sixteenth and seventeenth centuries, English Puritan theologians
radically expanded the doctrine with two major innovation^.'^
First, they transformed the covenant of grace as a merciful gift of
God into a bargained contract, voluntarily negotiated and agreed
upon, and absolutely binding on both sides. This new "federal theology,"
as it is called (from the Latin word foedus, "covenant") is
evident in the rhetoric of John Preston, a leading Puritan theologian
in the seventeenth century: "You may sue [God] of his bond
written and sealed, and He cannot deny it." "Take no denyall,
though the Lord may defer long, yet He will doe it, he cannot
chuse; for it is part of his C~venant."'~ What Calvin and his earlier
followers had often described as God's covenant-faithfulness to
man became in Puritan theology God's absolute contractual obligation
to man; what they had described as God's gracious gift of
faith to his predestined became man's voluntary negotiation and
agreement of the terms of his covenant with God.
Second, Puritan theologians added parties to the covenant.
They characterized many relationships between God and various
Biblical figures as covenant relations, whose terms were negotiated
and agreed upon voluntarily and were thus absolutely binding.
God's relations with the prophets were interpreted as bargains.
The relation between the Father and the Son was viewed as a
three-fold covenant of redemption, reconciliation, and suretyship.
Also the covenant of grace between God and 'man' was now understood
as a covenant not only with the elected individual Christian
but also with the 'elect nation' of England, which was called to
reform its laws and legal institutions according to God's word.
28. On the development of covenant theology in seventeenth century English Puritanism,
see Miller, The Marrow of Puritan Divinity, TRANSACTIONOSF THE COLONIALSOCIETYOF
MASSACHUETT24S7-300 (1936); M. WALZERT, HER EVOLUTIOONF THE SAINTS:A STUDY
IN THE OR~GINOSF RADICALP OLITICS1 67 ff., 222 ff. (1968).
29. Quoted in C. HILL,P URITANISMAN D REVOLUTIONS:TUDIESIN INTERPRETAT~ON
OF THE ENGLISHR EVOLUTION24 6 (1958). Cf:D. ZARET, THE HEAVENLYC ONTRACT:
IDEOLOGYAND ORGANIZATIOINN PRE-REVOLUTIONAPRUYR ITANISM16 1 (1985). Zaret
draws from sermons and tracts many examples of the tendency of Puritan preachers, in the
period before 1640, to analogize the covenant between God and man to commercial contracts
in which each party has the right to demand of the other that he "perform his bargain."
122 JOURNAL OF LAW & RELIGION [Vol. 4
Moreover, within the Biblical covenants the Puritans advocated
political and institutional covenants of all kinds: covenants to form
families, communities, associations, churches, cities, and even
commonwealths, each which was deemed absolutely binding.30
This broad theological doctrine provided the cardinal ethical
principle of Puritanism that each man was free to choose his act
but was bound to the choice he made, regardless of the consequences.
This principle was readily applied to contractual obligations
as well. Every contract, wrote a leading Puritan minister, 'is
a voluntary obligation between persons about things wherein they
enjoy a freedom of will and have a power to choose or to refuse.'jl
But having chosen, they are bound to perform.32
The canonists and Romanists of the late eleventh and twelfth
centuries and thereafter based the enforceability of contracts on two
principles: first, that to break a promise is a sin, an offense against
God, or, more fundamentally, an act of alienation of oneself from
God; and second, that the victim of the breach ought to have a legal
remedy if the purpose of the promise, or exchange of promises, was
reasonable and equitable. These principles served as part of the foundation
for the systematization of contract law, that is, the construction
of an integrated set of concepts and rules of contract law. Many
of these concepts continue to be taught today in courses in law
schools throughout the world-concepts and rules concerning fraud
and duress and mistake, unconscionability, duty to mitigate losses,
and many other aspects of contract law that link it directly with
moral responsibility. It would contribute enormously, I believe, to
our understanding of modern contract law if teachers and writers
were to trace its formation to the canon law of the church as it developed
in a pre-capitalist, pre-individualist, pre-rationalist, pre-nationalist
era. There is more "mythology" in the law of contract than Grant
Gilmore chose to discuss, and more "rationalization" than its current
critics on the left seem to realize. Modern contract law, as it was first
developed in the West, reflects what Alasdair MacIntyre has rightly
called the fundamental tension in a belief system that is concerned
with the transformation of man-as-he-is into man-as-he-could-be-if-
30. Cf:J. EUSDEN,P URITANSL,A WYERSA, ND POLITICISN EARLYS EVENTEENTCHE NTURY
ENGLAND 28 ff. (1968); Gough, supra note 26, at 82-99.
31. Quoted in Walzer, supra note 28, at 24.
32. Witte, supra note 25.
1031 GENERAL CONTRACT LAW
he-realized-his-tel~s.~~
It should be noted that its two underlying principles brought the
canon law of contract into close touch with other branches of the law
of civil obligations, including tort and restitution. To break a promise
is prima facie a wrong, a tort. On the other hand, it may be unjust,
though no wrong has been committed, to acquire or retain property
or benefits at another's expense. Under what I have called here the
moral theory of contract, a remedy (such as debt or detinue) may be
applicable both to breaches of contract and to cases of unjust enrichment.
It is of some interest in this connection that in English law the
concept of unjust enrichment was also concealed in the action of general
assumpsit, which is still usually classified as "quasi-contract."
The bargain theory of contract was, in its inception, also a moral
theory, but in a different sense of the word "moral." It started from
the premise that God is a God of order, who enters into contracts
with his people by which both he and they are absolutely bound. Its
second premise was that the people of God, in entering into contracts
with each other, whether social contracts or private, are also absolutely
bound by the contract terms, and that nonperformance is excused
only to the extent that those terms permit. However, the
Puritan stress on bargain and on calculability ("order") should not
obscure the fact that the bargain presupposed a strong relationship
between the contracting parties, within the community. These were
not yet the autonomous, self-sufficient individuals of the eighteenth
century Enlightenment. England under Puritan rule and in the century
that followed was intensely communitarian.
As in the case of the canon law, the underlying principles of the
English law of contracts, as it developed in the late seventeenth and
early eighteenth centuries, brought that law into close contact with
other branches of English law. In particular, English contract law
was not separated from commercial law. There was therefore no independent
integrated body of rules governing all kinds of contracts; in
that special sense, there was no "general theory of contract." Only in
the late eighteenth and early nineteenth centuries were efforts made to
synthesize "contract" as an independent branch of law. Instead, English
contract law in the late seventeenth and eighteenth centuries remained
a law of different types of contracts. The parties who entered
into a contract of bailment, or of lease, or an insurance contract, or a
conditional sale, or a transportation contract, or the sale of land, or a
33. A. MACINTYREA,F ~ERVI RTUEA: STUDYI N MORALTHEORY52 ff (2nd ed. 1984).
124 JOURNAL OF LAW & RELIGION
contract of personal services, were bound by the rules applicable to
the particular type of contract, except to the extent that they varied
them by express terms. What was involved in the first instance was
the will of the parties to enter into a relationship.
In the late eighteenth and nineteenth centuries there took place a
secularization of the older theories of contract law, in the sense that
their religious foundations were replaced by a conception based not
on faith in a transcendent reason and a transcendent will, from which
human reason and will are derived and to which they are responsible,
but rather on the inherent freedom of each individual to exercise his
own autonomous reason and will, subject only to considerations of
social utility. This secular theory drew heavily on contract doctrines
and rules that had originally been developed on the basis of the earlier
religious theories, but it subjected those doctrines and rules to a new
rationalization and a new systematization. It broke many of the links
not only between contract law and moral theology but also between
contract law and the communitarian postulates which had informed
both the Catholic (including Anglican as well as Roman Catholic)
and the Protestant (including both Lutheran and Calvinist) legal traditions.
The new secular theory also tended to isolate contract law
from other branches of civil law, such as the law of torts and of unjust
enrichment, whose moral and communitarian aspects were less easy
to suppress.
With the decline of individualism and rationalism in the twentieth
century, it was inevitable that the prevailing nineteenth century
theory of contract law would come under attack. Both its attackers
and its defenders need to be aware, however, of its historical background,
and especially of the religious sources from which it was derived
and against which it reacted. In the absence of such an
awareness, the issues become distorted. We are given a choice between
the prevailing theory of general contract law-without its historical
roots-and no theory at all. We may learn from history,
however, that there is a third possibility: to build a new and different
theory on the foundation of the older ones.