If most people were illiterate and (I’m assuming) business and personal contracts were mainly verbal, how could a Judge in the middle ages determine the truth or falseness of what two different people, or groups of people, were telling him?
the judicial shield.
perhaps contracts and argued contracts were between literate persons?
My wife the medieval historian says:
Most people in the middle ages lived in small communities where everyone knew each other. So it’s likely that someone asked to adjudicate a dispute would already have a pretty good idea of whose word was good. And if a contract was really necessary, there were scribes who would write things down for you for a fee.
Your question encompasses so many centuries and regions with different traditions and slowly or rapidly changing social and economic systems that it is impossible to give an answer that is in any way satisfying.
The Frankish Empire, for example, was for most of its time a feudal system; the Kaiser was the highest authority but the nobility held control within their region of power and that included jurisdiction. Common law and private law existed but the rules were different wherever you went. Contracts might have been considered binding, when a certain number of witnesses had been present or the local priest or a representative of the ruling noble or when some form of documentary had been produced etc. But the specific rules in effect within a region were usually extremely formulaic and had to be followed precisely.
There were not many laws that were binding throughout the Empire and those laws were not concerned with trade or contracts among common people; but many villages or towns knew “municipal law” and it was documented in written charters that made reliable economic relationships possible.
This practice was common in most regions in Europe throughout the Middle Ages; the charters were interpreted by judges who were sometimes appointed by regional authority, sometimes elected by entitled residents.
In the 12th century, Roman law was rediscovered and spread rapidly in Europe. Universities were established that taught jurisprudence and legally trained experts gained influence.
The jurisdiction, that had been divided into the high justice of the lords (with the king as the highest authority) and the low justice, that usually dealt with common people, changed during the 13th century when territorial lords and the church gained control over it. This is the time when criminal law is shaped into statutes that were binding throughout the region and town and village charters lost their significance in that respect (unless we are talking about free towns - sigh, I could name a myriad of exceptions following each general statement).
Ownership/property of land was still in most places dominated by the rules of (late) feudalism; if you wanted to acquire immobile property, you usually had to live in a town, but ownership of mobile items was common, though what constituted ownership and how it differed from property was still not [del]well[/del] defined. Bartolus might have been the first jurist who gave a definition that gained acceptance trans-regionally:
The importance of (international) trade once again grew during that time and contracts became far less formulaic and now demanded often only an agreement that was written down and, if a party felt the need, was witnessed by (independent) persons of reputation (the formula “Huius rei testes sunt: …” at the bottom of a document was quite common).
The easier and more commonly accepted contract rules led to a remarkable increase in documented bills of sale and purchase; distance played no role any longer but redhibitory actions or warranty claims for reductions in the purchase price still did not exist. However, the guilds checked the quality of products carefully and the punishments for fraud or sub-par craftsmanship were severe. And hidden defects were usually a reason for an annulment of the contract and also led to punishments by the guilds.
The late Middle Ages and the Renaissance see the re-emergence of privately held trade empires that dealt with partners in other nations and on other continents consistently; international trade or contract law did not exist but agreements seem to have been quite reliable for such volatile times. A major reason was then the same it is today: the rich traders had massive political influence and used it to rewrite laws, put pressure on their less-connected partners and get military or any other support by the state if they considered it necessary.
Thanks Wintertime that is fascinating and far beyond anything I’ve read on the subject.
Something else I’m aware of but know nothing about is the difference between European (presumably Napoleonic) contract law and English contract law (which the USA and the Commonwealth countries use).
In England, Parliament recognized the problem of proving an oral contract, and so in 1677 it enacted the Statute of Frauds, which provided that certain classes of contracts would be unenforceable unless put in writing. This included contracts for interests in real estate, for amounts above a certain figure, and other categories that can be seen at the link.
The same way we do now. Well, maybe not exactly identical, but the problem of having to reconstruct a past negotiation and agreement on the basis of only present, likely self-serving testimony is not unheard of in the law these days either.
It is an open secret in the law that the SoF has led to the non-enforcement of more perfectly acceptable (but for the absence of a writing), freely entered-into contracts than it has prevented the enforcement of phony-baloney contracts.
I don’t know about that. Laymen typically think of contracts as writings, thanks largely to the statute of frauds, and most people think oral agreements aren’t enforceable. It’s essentially impossible to figure out how many people never attempted to enforce a contract because they didn’t know it was enforceable (especially prior to the enactment of consumer protection statutes).
“An oral contract isn’t worth the paper it’s printed on.” - Samuel Goldwyn
Of course, they do things a bit differently in Hollywood…
Napoelonic law is looong after the Middle Ages, though.
IAMNAScholar or Lawyer, but recently skimmed through a book about general justice in the Middle Ages, and besides what wintertime already mentioned - getting witnesses or a respected member of community - one large part of medieval justice was religion. People took an oath because it was believed that God(s) would strike down an oathbreaker (this goes back to the Celts or the Ancient Greeks). And because society realized early on that some people were going to lie under oath and get away with it, the need for witnesses was very strong. Independent evidence - fingerprints, Sherlock Holmes using a magnifiying glass, figuring out if a right-handed or left-handed men hit the victim - are all rather modern ideas, not because the technical was lacking, but because the mindset of most people involved centered about truth.
An additional method besides oaths was a test of some kind (like oaths, you can find this in the Old Testament already - and that people tried to cheat). “I would lay my hand into a fire (for that person)” comes from that time when people really did put a hand into a fire / pick up a heated iron/ dip the hand into boiling water, under observation of a priest, who then sealed the hand with linnen and inspected it after a certain amount of time. If the hand had healed quickly, that was a sign that God had protected you, and you were vindicated.
Even in the Middle Ages, the Church was split on the issue, with lower-level priests and clergy often taking part, but the higher hierarchy slowly starting to forbid it - possibly because even back then, people realized that it was not always God doing signs that way (some theologicans considered it blasphemous to force God to do a miracle all the time to decide judical cases). But with the Witch hysteria, tests came back, like witch dunking.
Another variant of these tests was of course a battle, again, God would not let the innocent loose, no matter how big the opponent was (see David vs. Goliath), although women and weak people could pick a champion to fight in their place (which quickly lead to paid fighters deciding justice).
Don’t know about English law, but when we had law and economy in 9th grade, one of the basic questions our teacher asked us was how many contracts we had already done? And then to explain that every time we (wordlessly) pick up a newspaper at the kiosk, hand over the money and leave, we’ve completed a transaction and a contract, even without words, let alone writing. Because all that’s necessary is a declaration of intent of one party to deliver goods (or services) for money (or services); a declaration of another party to accept the offer; delivery of the merchandise; and payment of the negiotated price.
Well, you take a large balance (which is where the scales the blindfolded lady is holding originated from) and you place the defendant on one side, and a duck on the other side…no, wait, thats just total crap. Never mind.
Your teacher should be dismissed then. An enforcable contract is formed when an offer made is accepted. End of discussion.
Not quite.
Unless there are statutory exceptions, I really don’t think so.
I offer to give you my pen. You accept. Do we have an enforceable contract?
Note that constanze says “a transaction and a contract.”
…and was describing a high school law class.
constanze is from Germany. And while I am no expert in European civil law, as I understand it, the way contracts are analyzed in Germany under the *Bürgerliches Gesetzbuch *follows her account given above.
Furthermore, you are wrong from the standpoint of Anglo-American common law, as the parallels to offer, acceptance, and *the passage of consideration *(which I will observe you omitted from your erroneous accout) are more than palpably obvious.
I would suspect that two people entering into an agreement might ask the village elders to witness the agreement, so that, in the case of a dispute, there would be independent witnesses to the (verbal) contract.