(Tevye)
“And among ourselves, we get along perfectly well. Of course, there was the time when he sold him a horse, but delivered a mule, but that’s all settled now. Now we live in simple peace and harmony and…”
(1st Man)
“It was a horse.”
(2nd Man)
“It was a mule.”
Actually, it WAS a horse. The dispute was about the age of the horse.
“Of course, there was the time when he sold him a horse, and told him that it was only six years old, when it was really twelve”
Here it starts at 5:04.
Movie version. Original play has the horse and mule. But let’s not get into a dispute over it. 
Depending on time and place and persons involved, that might have been the case. Jurisdiction in the Middle Ages followed different principles than we are used to. Prior to the 12th century, it was mostly unwritten common law that was valid locally (in the village or town) or regionally within the dominion of the secular authority or the church (at that time that means catholic church).
The common law was administered by laymen who interpreted custom in each case anew; valid custom was following the personality principle, at least for common people. That means that they were subject of the common law of their home even outside of its area of jurisdiction – which meant that contracts among people from regions with different common law practices were often done in a way that was acceptable for both jurisdictions in the way their customs were interpreted by the parties involved in the contract.
So the laws of the Middle Ages were a) mostly orally passed on b) interpreted anew in each case, c) heterogeneous and d) bound to the personality principle.
Sounds difficult? It gets worse, because the Middle Ages had no idea of égalité either; equality before the law was non-existent, the law distinguished among social affiliations: between secular men and the cleric, nobility and countrymen, farm hands and bond-servants etc. Even the manservants of the nobility were considered a specific social group that was treated in its own way by the law (aka their lord).
Things began to change during the 12th century; it’s not a coincidence that the study of the Roman law coincides with the (re-)emergence of the idea of the nation. And it’s telling that we have the first written documentation of common law within the German Reich when its unity disintegrated more and more.
I’m studying English contract law at present, so I’m only referring to England here. Bear in mind during the actual Middle Ages, from roughly 500 AD to 1400 AD, the law barely existed in the sense we know it now; even criminal courts had very little meaning from the practical perspective of your average villager somewhere in the counties. There were no permanent local courts, only travelling courts that moved round the country so would usually only be in town once every few years.
Contract law, quite literally, did not exist through most of the Middle Ages. If someone owed you a specific debt you could try and enforce it in the courts, but the idea of legally enforcing a business or personal contract hadn’t arisen yet. Through the 1500s claims under the equitable concept of ‘assumpsit’, meaning “he promised”, gradually became recognized and they were fully established by the time of Slade’s Case in 1602, which is generally one of the first cases contract law is traced to. Parliament recognized the problems with trying to enforce oral contracts and, as has been pointed out, they introduced the Statute of Frauds 1677 which required that a wide range of contractual deals had to be put in writing, due to the exact problem you’re talking about.
I don’t see why the teacher should be dismissed - that analysis was not only correct but compatible with your statement? A contract requires communication of a clear offer and communication of a clear acceptance. But they don’t need to be in words, they can be judged from conduct. If you pick up a newspaper at a kiosk, hand over money and leave, you’ve formed a valid contract for the newspaper. If you take a bottle of milk to a counter in a shop and exchange money for it with the assistant, you’ve formed a contract, even without speaking.
Although, having said that, minors are generally held to be incapable of having the intention to enter into contractual relations unless it is for ‘necessaries’, so if a 9th grader buys a newspaper at a kiosk they probably won’t have formed a contract in doing so. But an adult would have done.
I’ll accept that the original play had a horse and a mule. What I won’t accept is that peasants who used horses and mules didn’t know the difference between the two. It’s rather like mistaking a chicken and a duck.
In England in the High Middle Ages, recognitors would look into a matter and present what they thought to be the truth to the court. Think of them as being a jury of upper-middle to upper-class people who would probably be aware of the litigants and the issues. For example:
We have different grades for minors (as in other areas): the law thinks it’s better to gradually get under-18s used to limited freedoms as the kids and teens mature over the years, instead of forbidding everything under 18, and allowing everything over 18. In the area of contract law, under 7 years old are considered incapable of giving valid consent. But between age 7 and 18, there’s the so-called “pocket money paragraph” (German). This means that if a minor buys things in the monetary amount of pocket money which his parents (aunts, gramps, relatives) have given him for that purpose, then consent by the parents to the minor to spend freely is considered implied. This does not apply to bigger purchases.
So a 15-year old buying a newspaper with his pocket money, (or a playboy that’s not indexed) is okay. Buying a bicycle for 200 Euros without consent of the parents is legally not valid, and if the parents disagree, they can chew out the seller and cancel the contract. It’s in a special phase of pending, until the parents either okay it afterwards or annul it.
[QUOTE=Really Not all that Bright]
I offer to give you my pen. You accept. Do we have an enforceable contract?
[/QUOTE]
Kids, less doping more studying :D. You guys need to remember, recall and apply the difference between the colloquial and legal meaning of “offer”. If what the consideration would be for a contract is not clear from the communication or leaves room for negotiation, then it is not an offer; it is an invitation to treat or invitation to bargain as I believe it is called in the US.
And Kimmy_Gibbler I said enforceable contract. The same does not need “passage of consideration” under any provision of common law that I have ever studied. You need the same to conclude a contract, not to make it enforceable, if what you said was true then there would be no such thing as an action for breach of contract.
Buzzzzzzz. Wrong again.
Consideration doesn’t necessarily pass when the contract is performed (this is the standard terminology for the phase identify by the term “concluded”). But consideration is essential to the formation of a contract. The consideration can be mutual exchange of promises: In 30 days, if your house passes inspection, I promise to buy, and you promise to sell.
Here is an example that reveals your error: Suppose I offer you now a new car one week hence, requiring nothing on your part. You accept. This is not a gift, because there is neither present donative intent nor delivery. Under your rule, it is a contract, because there is an offer and acceptance. But because no consideration flows from the acceptor to the offeror, it is an unenforceable nudum pactum to the common law.
TL;DR: No account of contract formation in common law countries omits consideration from the trinity of essentials.
This is first year first term law school teaching.
You need to understand what an offer is in a legal sense NOT to everyday sense that you have been using.
I’ll adopt Treitel’s definition; *an offer an expression of willingness to contract on certain terms, made with the intention that it shall become binding as soon as it is accepted by the person to whom it is addressed", the “offeree” *. If the above elements are not present it is not an offer, it is at best an invitation to treat, to continue negotiation until an an offer is made
Now to take your specific objections to my statements. It is obvious that if the consideration is not agreed upon there will be no enforceable contract, indeed there would have been no offer at all since for there to have been an offer you need all terms to have been finally communicated. If we can say that under law, an offer has been made it is understood that consideration has been agreed upon. otherwise it would not have been an offer at all.
An enforceable contract occurs at the time an offer is accepted. That has been the position in Common Law countries (who have not made changes vide statute) and I am fortified in the above by **Smith v Mansi [1962] 3 All E.R. 857
** and Storer v Manchester City Council [1974] 3 All E.R. 824
Of course even with consideration being agreed upon, it is not necessary that an offer is in fact an offer; and that acceptance of the same makes an enforceable contract. For example if I say that I might consider selling him a car for $1000 if he can show me he has sufficient funds will not be a contract even if he agrees and does so, because I have said I might consider, I have not agreed to be bound, even though consideration is present. On the other hand if I say I will sell you the car for $1000 if you can show me you have sufficient funds, means that there is a contract once I have agreed and shown you sufficient funds because the terms were meant to be binding.
“is the right of the dominion of a corporeal thing perfectly except the law had to be administered forbids the”
“This matter are witnesses:”
Lesson: Provide your own translations, or let Google do it for you.
Missed your post at first.
+ :smack:
“Huius rei testes sunt: ..” is easy enough: “Witnesses to this are: ..”; “Dominium est ius de re corporali perfecte disponendi, nisi lex prohibeat” is more problematic since a) the ideas behind the words differ so much between times and cultures (as I said before, the word property did not even exist in a modern sense) and b) neither Latin nor English are my mother tongue, so to get it right precisely is highly unlikely if you’re not a professional translator.
That’s why I’d prefer an English native speaker to do it. But in essence, it means: “Property is the right to have an object/ an item fully at your disposal (or to possess it without restriction, to do with it as you see fit), in so far as it is not forbidden by law.”
Note that written law (and concepts from Roman law) was retained in southern Europe (the dividing line going more or less through the middle of France), and as a result the litteracy rate was much higher in say, Provence or Italy than in Normandy or England, due to the need of writing down contracts, donations, wills, etc…
Also, as mentionned, the “middle ages” cover quite a long period. During the very early middle age, at least in Gaul, people would keep describing themselves as “Roman” or “Burgonde”, or whatever else, for generations, and cases would be settled according to one’s own law, Germanic customs and “laws” not being applicable to so-called “Romans” and the other way around.
At much later times, in areas not using written law, there still was a quite complete customary law, applicable in a relatively large area (say, a province), and that judges (or noblemen acting as such) were expected to know and implement.
Then you had also judgment by duel, or in other times and places the wergeld (that much money for the life of a servant, that much for the middle finger of a free man, etc…), or Canon Law that could be applicable in issues only tangentially related to the Church, and so on…
In fact, it varied so much depending on the exact time and place that you can’t speak of law during the middle ages in general in any meaningful sense. However, law, AFAIK, never has been just randomness and fiat decisions during this period. Living in a given place or time, you’d know what to expect in terms of applicable “procedure”, testimony, evidences, sanctions, etc… in case you’d commit a felony or have a “civil case” against your neighbor.
Two separate stories about legal contracts/systems, in the same location and during the Middle Ages (Kingdom of Navarre - it had other names during the Middle Ages but the political entity was the same).
Story the first:
I really need to look up this article, since the newspaper that published it has made all its archives available electronically. Local newspaper Diario de Navarra publishes articles on any Doctoral Thesis presented at the local universities. About twenty years ago, there was one on the subject of “Marriage Disputes in Navarre before the Council of Trent”. There had been other Councils of the Church which made a call for priests to witness and record weddings, but after this one it actually became common. So his question had been: what kind of marriage issues had been brought before Church judges before that change took place and how did they get solved? Trent took place in the 16th century.
He found 13 cases. In all of them, the suitor was a woman saying that a certain man was her husband and therefore could not become a monk/marry a different woman. In most cases they lived in the same village, but not always (there were cases where each of them lived with and cared for elderly parents). The Judge went there and called up everybody in the village(s) where suitor and defendant lived. In general, the questions were along the lines of “do you know them?” “have you ever known them to court?” “have you known them to be man and wife?”
In one case, the trial was cut short. Once everybody was together in the village square, the judge called both parts forward. The woman had three children with her. The judge looked at them. Looked at the man and the woman. Looked at the congregation in general. Looked at the documents he had. Asked “sir, it says here that you are an only child, that your parents were also only children, that you have no known male cousins nor brothers?” “Yes Father” “In that case I fail in her favor, as I can’t see how could three children look so much like you and not be yours.”
Story the Second:
Sancho VII the Strong was the last king of the first Navarrese dinasty. When he died without surviving issue, the throne went to a nephew, Thibault of Champagne, called el Trovador, the Poet. This took place in the 13th Century.
Thibault knew that local laws were different from those to which he was accustomed, so he asked for copies of the local legislation that he may read it and become familiar with it. Oops. Uh… written? As in, on parchment? Uh…
Some things were, indeed, in writing, but these were a combination of minutes from Parlamentary Meetings and of special laws given to specific locations (such as “Fueros de Fundación”, given to a new village started by the King, with some parts having a pre-defined limited life and others specifically prepared to change as villagers saw fit). A lot of things changed from valley to valley, village to village. “So how do you muddle through this?”, asked the King. “Well, when there is a dispute, people go to see a wise man or woman, who may be a man of the cloth, or a rabbi if they’re Jews, or a healer, or their lord… and if they can’t solve the dispute they go together to see someone else.” “And eventually to me.” “Well, yes, if they can’t solve it, yeah.”
Since aspirin hadn’t been invented yet, what Thibault did was perform the first Compilación de los Fueros de Navarra, the first Collection of Navarrese Laws, by speaking (himself or his scribes) with as many “wise folk” as could be located, asking them about situations they’d been called to solve, posing other situations to them, etc. For the previous milennia, those who hadn’t been subject to Roman Law had been muddling along more-or-less merrily on the wisefolk system - writing, what for? (Romans had a dual-law system, where if any part was a Roman the situation would be subject to Roman law, and if everybody was from “group C” it would be subject to “group C” laws, and if they were from different groups but none of them a Roman then they better start by agreeing which legal system applied…).
Correction to the first story: the man’s father had also been dead a long time - so no, the kids couldn’t be the man’s half-siblings.
If it makes you feel better, then assume they knew what was delivered, but they were arguing about what was promised.
“What is this mule? I bought a horse!”
“No, you paid for a mule”
“What are you talking about? It was a horse I paid for!”
"What do I look like, an idiot? It was a mule you wanted. "
“It was a horse!”
“Mule!”
“Horse!”
etc.
I CAN believe that. It’s the same basic argument as the horse’s age. That is, one thing was agreed upon, but another thing was delivered. And possibly each party was sincere, in the horse/mule dispute, that is, the buyer looked at several animals, and discussed them, and made his decision, but the seller didn’t remember which animal was agreed upon.
What about detrimental reliance?
But if you offer the car and I decide ( based on your offer ) to sell the car I’m currently driving, wouldn’t you be liable to me if you changed your mind?
To make it more clear cut, what if I have an offer to buy my car and you said “go for it, Ann, sell your car,I’ll give you my car next week”…wouldn’t you a least be liable for something?
I’m being vague because my legal knowledge comes from daytime court TV shows but detrimental reliance comes up frequently in that venue.