This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
No general theory of contract was developed or even attempted during the early period of the common law. The condition of the law was not suitable for generalization and Anglo-American law has always been distinguished more for its practical results than for abstract speculation. This delay in the development of a general theory has made it possible to develop such a theory at modern law free from the restraints of archaic form; and imbued with modern ideas. The common law has gone a long way toward working itself free from feudal analogies. By its reception of the law-merchant and of the law of the local courts and by its partial reception of the Roman law, both in its original form and in its form at modern civil law, it has bridged the gap between the old law and modern conditions and has saved itself from the necessity of a complete reception of the Roman law. The greatest gap in contract law was its general theory; and the greatest borrowing of Roman law has been made for the purpose of filling up this gap. In the whole development of the law of contract, the general spirit and method of the Roman law have been important factors. Occasional confusion necessarily results from imposing modern law with its strong tendency toward Roman principles upon a foundation of early common law; and from attempting to harmonize the two. It is, however, useless to ignore this peculiarity of development or to regret it. On the one hand we must acknowledge that our present principles can not be applied to the early common law; and on the other hand, we must acknowledge that many of the peculiar principles of the early common law either are obsolete or are arrested in development and that modern contract law owes its ideas in part to the law of the local courts, in part to the law-merchant, in part to the gradual infusion of Roman law and in part to the original stock of the common law. The general theory of contract which the common law has adopted, outwardly at least, is the theory which was worked out by the Roman jurists; and especially by the continental writers upon Roman law and general jurisprudence. For lack of any general theory of its own, the common law had adopted the Roman theory which purports to be the theory of general jurisprudence. It is always a question how far it is a theory of jurisprudence which is necessarily the same wherever human beings undertake to bind themselves by contract and how far it is an enlarged and expanded statement of the positive rules which are peculiar to Roman law. Every writer on general jurisprudence is tempted to assume that the system of law with which he is familiar is sufficient when properly revised and expanded for the jurisprudence of all nations and for all time.
2 A special contract has been contrasted with an express contract. "A special contract is one with peculiar provisions which, if omitted from the ordinary contract, the law will not supply. An express contract is one whose terms are stated either orally or in writing. An express contract may or may not be special, but a special contract is always express": Jackson v. Creek, 47 Ind. App. 541, 94 N. E. 416.
A detailed discussion of the nature of these kinds of contracts is found in ch. XLIII and ch. XLIV.