Bodin and Grotius reclassifying onerous contracts
A while ago, I made an entry in this journal about innominate and synallagmatic contracts. Continuing on that theme, I wanted to record some additional patterns that are now emerging in my study of Bodin's legal science and some of the later Natural Law School theorists. Take a look here first:
This is a detail from Bodin's Distributio in the section where he discusses contractual agreements. I'll be explaining this in greater detail in Divisions of Law. He calls this 'mercenarium' to indicate the transactional quality of these contracts to enable commerce (but he is really talking about 'onerous' contracts - as opposed to 'gratuitous' which he treats later). Most Roman consensual contracts fall under this new heading.
And this brings us back to that text I can't seem to escape in II, 12 of De Jure Belli ac Pacis.
It's a rather technical passage that I suspect most modern readers of Grotius skip over, but it is a very revealing point about natural law and contracts that Grotius is making. 'Natural law ignores these distinctions' between nominate and innominate contracts. And that is why, like Bodin, Grotius is able to see a family resemblance between do-ut-des and emptio-venditio (the contract of sale) and another family resemblance between do-ut-facias and locatio-conductio (the contract of hire). My Roman law students will, of course, remember that this is a big No-no. Innominates and nominates must be kept segregated because only the latter are properly actionable. What Grotius is saying (and I believe Bodin has made a similar point, a century before Grotius) is that actionability isn't what matters in the typology of contracts.
What caught my eye is how the subdivisions of onerous contracts are the 'innominate contracts': Do-ut-des; Do-ut-facias; -Facio-ut-facias; etc. hybrid forms. Grotius tries something similar in his outline of Roman-Dutch law:
I suspect there must be a Scholastic theological basis for this reasoning, as with most novelties in the contract theory of this period. Some of my authorities on this have suggested Lessius and Molina. I wonder if Connan is another possibility. There's not much work on Connan, but I have found him a promising alternative. This remains a vital to-do item.
