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.
Anglo-Saxon law was a tribal law, a law of popular custom, rather than a law of jurists developed and interpreted by a technically trained class. All that we have left of the law itself is in the form of certain so-called codes which bear the names of the different kings by whom they were declared.1 There is no reason for supposing that these codes attempted to make a complete statement of English law. In fact, we can be very sure that they presuppose a great mass of customary law and that they are intended to emphasize those parts of the law which were doubtful, which needed change or which were most frequently violated. The codes themselves recognized the contract of sale, but they recognized it primarily for the purpose of preventing the sale of stolen property and for the purpose of indicating to one who wished to comply with the law the means by which he could protect himself from personal liability in case he were so unfortunate as to have bought stolen property. The great purpose of these provisions is to enable the unfortunate purchaser to prove who his vendor was and to transfer liability to him.2 It is only from a few forms which are found in the Anglo-Saxon laws that it appears that credit was given and that a debtor could at least be driven to an oath to deny liability.3 It appears from incidental references that transactions which we would regard to-day as contracts were quite common. The plaintiff had to give security for prosecuting a claim, and under some circumstances he might compel the defendant to give security for the performance of a judgment against him.4 From analogies of continental and Scandinavian law it seems likely that the blood feud was frequently settled by a contract. For the performance of this contract of compromise, securities were generally given. Debts could be enforced by an action which was much like the common law action of debt and in which compurgation was a good defense. Pledges of property and warranties were recognized; and they were enforced as far as the legal machinery of that day was capable of enforcing them.
1 The Laws of the Anglo-Saxons, by Harold D. Hazeltine, 29 Law Quarterly Review, 387.
2 Laws of Edward I (I Thorpe, Ancient Laws and Institutes, 159); Laws of Aethelstan (I, Secular) 10, 24 (I Thorpe, Ancient Laws and Institutes, 205, 213); Laws of Edmund (Concilium Culintonese) V (I Thorpe, Ancient Laws and Institutes, 253); Laws of Edgar (Secular) 6 (I Thorpe,
Ancient Laws and Institutes, 275); Laws of Ethelred (I Dooms) 3 (I Thorpe, Ancient Laws and Institutes, 283); Laws of Cnut (Secular) 24 (I Thorpe, Ancient LawB and Institutes, 391); Laws of Edward the Confessor, XXXVIII (I Thorpe, Ancient Laws and Institutes, 461).
3 Oaths, II (I Thorpe, Ancient Laws and Institutes, 183).
While the foregoing contracts were all of them contracts in which one side had performed in whole or in part and which accordingly, in imitation of Roman nomenclature, are referred to as real contracts, there were other types of contract which are explained as formal in character. The first of these arises out of the so-called pledge of faith. If the promisor pledged his faith as a Christian to the performance of his contract, it appears that a special religious sanction was given to such promise and that it could be enforced because of such pledge without regard to the other elements of the transaction. This is the only form of religious contract or the promissory oath which in other systems of law is one of the starting points of contract law. It is relatively unimportant in English law. Possibly this is due to the fact that Christianity was an exotic which displaced the native religion. With the introduction of Christianity it is possible that the close connection between law and religion was broken temporarily and that the two were regarded as opposed instead of as two different aspects of the same mass of custom. For this reason, too, it may be the priestly caste does not possess any special knowledge of the law. In this respect too, the development of English law is very different from the development of many other systems. It may be added, as will be seen later, that the coalescence of law and religion which appears in the pledge of faith was interrupted by the subsequent trend of political events which brought the king as administrator of national justice into collision with the church as the advocate of special privileges for the clergy and of special law outside of the courts of the king and beyond its control.
Another type of contract is usually classed as a formal contract. It consists in a contract apparently executory on both sides for which the promisee has paid earnest money as a means of binding the bargain. As at later law, earnest is not a part of the purchase price, trot something over and above the purchase price; and the result of the transaction apparently was to bind the promisor, but not to bind the promisee except for the forfeiture of the earnest money or in some cases for the forfeiture of an additional penalty. Such a contract might also be rendered binding by payment of part of the purchase price or by a delivery of part of the goods sold, for the transaction was usually one for the sale of goods. This type of contract is usually spoken of as a formal contract. It will be noted that the requirements are substantially those of the statute of frauds with reference to the sale of goods which have been carried into the sale of goods act. It is interesting to note that while students of Germanic and Anglo-Saxon law agree that this is a formal contract, the courts now agree that similar provisions under the statute of frauds deal merely with evidence and not with the form of the contract; and that such a contract is an informal contract, although one of these facts must be shown in order to prove the existence of the contract, unless the contract or some note or memorandum thereof is in writing and signed by the party to be charged therewith. In like manner a contract of betrothal which included a contract for a marriage settlement was regarded as binding at Anglo-Saxon law if the bridegroom had paid earnest to bind the bargain.5
4 Essays in Anglo-Saxon Law, 190, 208.
This payment, whether in betrothal contracts or other contracts, was known as the "wed." The transaction is one which appears in all Germanic law, especially in the law of the Lombards and of the Franks. The payment frequently was a stick or an arrow. Its exact significance is not clear. Some see in it the staff engraved with runes and make it a relic of an old religious transaction. Others see in it the spear of the wrongdoer, which is surrendered by his kinfolk to the avenger of blood as a pledge that they will atone for the wrong in settlement of the blood feud. In its later form in Anglo-Saxon law it looks very much like our familiar option for value, which we certainly do not regard as a formal contract. The habit of giving something over and above the amount agreed upon as a part of a legal transaction, especially of a transaction of sale, has survived in popular usage long after its legal effect has ceased to exist.
Another form of contract which is regarded as a formal contract is the contract which is concluded by shaking hands. Some see in this a relic of a pledge of faith or a pledge of one's person symbolized by his right hand as security for the performance of his promise. It may be added that it seems doubtful whether these transactions should be called formal contracts in the sense in which the term is used in later law. A formal contract owes its obligation to the form of the transaction without regard to the actual intention of the parties back of the outward form. It is doubtful if this was the effect of the payment of earnest or of a hand shake at early English law. These were apparently matters of evidence necessary to prove that the parties had really entered into an agreement. Without them the agreement could not be enforced. With them, however, it appears as if the actual intention of the parties could be inquired into as well as questions of fraud and the like, which tend to show that the intention was induced by deceit.6 In view of the fact that Anglo-Saxon procedure gave no opportunity for the introduction of evidence at the trial of the issue the requirement of some outward act in addition to mutual promises is not as irrational as it would seem at our law to-day. The question whether the negotiations of the parties resulted in the formation of a contract or whether they remained as incomplete negotiations, is a question which gives rise to much litigation, even under modern methods of trial. Under the Anglo-Saxon methods of trial the difficulties in determining whether a contract had been made unless some outward act could be shown, must have been almost insuperable.
5 Theodore Liber Poenitentialis, Sec. 29 (It Thorpe, Ancient Laws and Institutes, 11); Essays in Anglo-Saxon Law, 167.
6 For a discussion of pledge of faith, hand-shake and payment of earnest at Anglo-Saxon law, see I Pollock & Mait-land (2d Ed.), 57; II Holdsworth, History of English Law, 72 et seq.; Jenk's, Short History of English Law, 13; Essays on Anglo-Saxon Law, 189; Contracts in Early English Law, by Sir Frederick Pollock, 6 Harvard Law Review, 389; The Anglo-Saxon Period of English Law, by A. H. F. Lefroy, 26 Yale Law Journal, 291, 388; Forms and Sanctions of Anglo-Saxon Contracts, by Robert L. Henry, Jr., 15 Mich. Law Review, 552, 639; The Transaction of Sale in Saxon Times, by Gilbert Stone, 29 Law Quarterly Review, 323; Origins of the Law of Sale, by Gilbert Stone, 31 Law Quarterly Review, 50.
Most of the foregoing authorities assume that contract at Anglo-Saxon law was very rudimentary, and little more than an appendix to the law of property. For a discussion of the subject which regards contract as "a very prominent feature of the English legal system prior to the Norman Conquest," see The Formal Contract of Early English Law, by Harold D. Hazeltine, 10 Columbia Law Review, G08.
For a discussion of pledge of faith, payment of earnest and the like in carly Frankish and Germanic law, see Brissaud, History of French Private Law (Continental Legal History Series), Sec. 362 et seq., pp. 471 et seq.; Huebner, History of Germanic Private Law (Continental Legal History Series), Sec. 68 et seq., pp. 463 et seq.
For the pledge of faith, the fides facta of the Frankish law, see Lex Salica, Hessels & Kern, 316 et seq.; Henderson's Historical Documents, 185 et seq.