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Gordley, James --- "In defense of Roman contract law" [2017] ELECD 603; in Monateri, Giuseppe Pier (ed), "Comparative Contract Law" (Edward Elgar Publishing, 2017) 19

Book Title: Comparative Contract Law

Editor(s): Monateri, Giuseppe Pier

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781849804516

Section: Chapter 2

Section Title: In defense of Roman contract law

Author(s): Gordley, James

Number of pages: 28

Abstract/Description:

Even those who understand and admire Roman contract law think that modern contract law is a great improvement. As has often been said, in contrast to the Romans, who had a law of particular contracts, we have a general contract law reflecting general principles. One principle is that contracts are binding upon consent, although there are exceptions such as the common law rules on consideration and the civil law requirement that certain contracts be notarized. Another principle is that the parties are bound to the terms to which they expressly agreed and, if their agreement is silent, to the terms on which they would have agreed had they given the matter thought. A third is that when one party fails to perform, the aggrieved party should receive a remedy that places him where he would have been had the performance been forthcoming. As I have described elsewhere, Roman law was first given a systematic structure based on general principles by a group of jurists who worked in the sixteenth and seventeenth centuries and are known to historians as the Spanish natural law school or the late scholastics. They synthesized Roman law with the moral philosophy of their intellectual heroes, Aristotle and Thomas Aquinas. Many of their conclusions were borrowed by the seventeenth century founders of the northern natural law school, Hugo Grotius and Samuel Pufendorf, paradoxically, at the very time when the Aristotelian philosophy on which these conclusions had been based was falling into disfavor.