Archaic Methods of Validating a Contract-The "Blow and the "Libation"

Authors

Abstract

Sir Henry Maine tells us that at the ·dawn of Roman jurisprudence the term in use for contract was one which is very familiar to students of historical Latinity. "It was nexum, and the parties to the contract were said to be nexi." MAINE, ANCIENT LAW [Ed. 10, by Pollock], 328. Manilius, a Latin antiquarian, describes nexum as omne quad per libram et aes geritur, in quo sint mancipia, "every transaction with the copper and the balance, in which class are mancipia." VARRO, DE L. L. 7, 105. Mancipation was a conveyance, and Maine says that this citation appears to confound Contracts and Conveyances, which in the philosophy of jurisprudence are not simply kept apart but are actually opposed to each other. He thinks, therefore, that we have here 'indications not to be mistaken of a state of social affairs in which Conveyances and Contracts were practically confounded." MAINE, 329. We may well expect, then, that the validating mark of the early contract would also be the validating mark of a conveyance. Maine resolves this apparent incongruity by pointing out that in the infancy of jurisprudence legal conceptions are general, and with maturity the change is in the direction of specialization. At first there was but one ceremonial for solemn transactions, that was nexum. And it seems that the earliest of these was a conveyance. With the advent of the Contract, precisely the same forms which were in use when a conveyance of property was effected seem to have been employed. Soon after comes the "period at which the notion of a Contract has disengaged itself from the notion of a Conveyance." MAINE, 331. Then "The transaction 'with the copper and the balance,' when intended to have for its office the transfer of property, is known by the new and special name of Mancipation. The ancient nexum still designates the same ceremony, but only when it is employed for the special purpose of solemnizing a contract." MAINE, 331. "It is likely that a very slight perversion of the nexum from its original functions first gave rise to its employment in Contracts, and that the very slightness of the change long prevented its being appreciated or noticed." MAINE, 332.

Recommended Citation

Archaic Methods of Validating a Contract-The "Blow and the "Libation", 21 Mich. L. Rev. 79 (1922).
Available at: https://repository.law.umich.edu/mlr/vol21/iss1/5