Classifying and Clarifying Contracts

Author:Ronald J. Scalise, Jr.
Position:Vice Dean for Academic Affairs & A.D. Freeman Professor of Civil Law, Tulane Law School.
Pages:1063-107
 
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Classifying and Clarifying Contracts
Ronald J. Scalise Jr .*
TABLE OF CONTENTS
Introduction ................................................................................ 1064
I. A Brief Overview of Roman Contract Classifications ............... 1068
A. Consensual Contracts ........................................................... 1069
B. Contracts Re ......................................................................... 1069
C. Contracts Verbis................................................................... 1070
D. Contracts Litteris ................................................................. 1070
E. Innominate Contracts ........................................................... 1071
F. The Relevance of the Roman System for Louisiana Law .... 1072
II. Medieval Law and the Abandonment of the Roman System ..... 1074
III. The French System of Classification.......................................... 1077
IV. The Louisiana Civil Code’s Classification of Contracts ............ 1081
A. Unilateral and Bilateral ........................................................ 1084
B. Onerous and Gratuitous (and Mixed) .................................. 1086
1. Onerous v. Bilateral and Gratuitous v. Unilateral ......... 1091
2. The Scope of Gratuitous Contracts ............................... 1092
C. Commutative, Independent, Aleatory, and Certain ............. 1098
1. The Division in the 1825 Code ..................................... 1099
2. The Division in Modern Law ........................................ 1100
D. Principal and Accessory ...................................................... 1106
E. Nominate and Innominate .................................................... 1106
Conclusion .................................................................................. 1107
Copyright 2016, by RONALD J. SCALISE, JR.
* Vice Dean for Academic Affairs & A.D. Freeman Professor of Civil Law,
Tulane Law School. Thanks are due to the following individuals: Sally
Richardson, T hanassi Yiannopoulos, and Nick Davrados for helpful comments
and suggestions and James Carter for research on law institute source documents.
Thanks are also due to the participants in the 2016 Tulane Civil Law Seminar as
well as the attendees at the 2016 Louisiana Law Review Symposium of the Civil
Law. All remaining errors are my own.
1064 LOUISIANA LAW REVIEW [Vol. 76
INTRODUCTION
Although systems of classification and organization are popular in the
natural sciences, it is not so in law. Ever since the age of legal realism, and
probably long before, a jurisprudence of concepts or ideas has fallen out
of fashion in favor of a system focused upon the interests involved in a
case. Resolving legal disputes in a fair and equitable manner has taken
precedence over rigid conceptualizations as to what rules are applicable to
what classes or categories of contracts. Casuistry, although not popular in
many dogmatic conceptions of civil codes, is popular today. As the late
Tony Weir once wrote:
It is possible for us, like Hamlet, to tell a hawk from a handsaw,
and to do so without a complete theory of aerial predators or an
exhaustive inventory of the carpenter’s toolbox; furthermore, we
can effect such telling without having a theory of telling, though
the current fad of epistemology might lead one to doubt that (given
a theory of doubting).
1
Certainly, the Romans would have agreed. In fact, this Article purports
to follow the advice of Tony Weir and the example of Hamlet in
distinguishing and explaining the various types of contracts that exist
under the Louisiana Civil Code but without purporting to proffer a new
theory of contracts that would necessarily harmonize them all. In fact, such
a theory has eluded the drafters of the Louisiana Civil Code for the last
200 years and, before them, French scholars and Roman jurists. Any
attempted system would likely be unsatisfactory and, consequently, none
shall be offered.
The consequences of appropriate classification may not be obvious at
first glance and, in fact, the usefulness of engaging in the exercise at all
has varied throughout the ages. In Roman times, the matter of
classification dictated the matter of enforceability.
2
Without finding an
appropriate class or box for an interaction to reside, the relationship
between the parties risked unenforceability. Over the course of time, the
1
. Tony Weir, Contracts in Rome and England, 66 TUL. L. REV. 1615, 1616
(1992) (footnote omitted) (quoting Shakespeare: “I am but mad north-north-west.
When the wind is southerly, I know a hawk from a handsaw. WILLIAM
SHAKESPEARE, HAMLET act. 2, sc. 2, ll. 388–89). Hamlet’s reference to a “handsaw”
may not be an allusion to the carpenter’s tool, but to another bird, the hernshaw. 1
SHORTER OXFORD ENGLISH DICTIONARY 1224 (Lesley Brown ed., 1993).
2
. JAMES GORDLEY, FOUNDATIONS OF PRIVATE LAW: PROPERTY, TORT,
CONTRACT, UNJUST ENRICHMENT 28789 (2006) [hereinafter GORDLEY,
FOUNDATIONS].
2016] CLASSIFYING AND CLARIFYING CONTRACTS 1065
matter changed as contracts became enforceable based upon their
adherence to a general theory, such as the “will” theory, be it a subjective
internalization requirement or an objective manifestation of consent.
Nonetheless, much of the classificatory system inherited from the Romans
has persisted.
Although the civil law mind and civil law style eschew the types of
definitions in the law that are necessary for classification,
3
both the
Louisiana and the French Civil Codes specify definitions for various types
of classifications of contracts.
4
The purpose behind classification of “legal
concepts”—or in this case, contractshas been persuasively discussed by
the honoree of this Symposium, Professor Alain Levasseur, who has
delineated three goals or purposes of classifying concepts. The first is “to
be able to bring a given factual situation under a concept or another so that
the factual situation will flow automatically from the proper classification
under the appropriate concept.”
5
Of course, this rationale would be
rejected by those who believe that law should be more pragmatic and less
doctrinaire or by those who reject the impartiality and coherence of legal
analysis altogether.
6
For others who prefer rigorous analysis and
conceptual purity, however, knowing how to distinguish an immovable
from a movable is necessary to determine the relevant law to apply in a
given context, such as the requisite form of the contract needed for
transfer.
7
A second reason Professor Levasseur gives for having an accurate
classification scheme is “to protect against the danger of polysemy or a
3
. E. Allan Farnsworth, A Common Lawyer’s View of His Civilian Colleagues,
57 LA. L. REV. 227, 233 (1996).
4
. CODE CIVIL [C. CIV.] arts. 1102−1107 (Fr.); LA. CIV. CODE arts. 1907−1916
(2016). It has been suggested that the civil law’s resistance to the common law fetish
of definitions as part of the law can be explainedalong with lengthy and verbose
legislative draftingin part by the common law’s distrust of judges to properly
interpret the law. Farnsworth, supra note 3, at 233. Other civil codes, such as the
German and Japanese Civil Codes, have resisted the temptation to contain
definitions. See, e.g., BÜRGERLICHES GESETZBUCH [BGB] [CIVIL CODE] (Ger.)
(containing no classificatory definitions of contracts); Akira Kamo, Crystallization,
Unification, or Differentiation? The J apanese Civil Code (Law of Obligations)
Reform Commission and Basic Refor m Policy (Draft Proposals), 24 COLUM. J.
ASIAN L. 171, 178 (2010).
5
. ALAIN A. LEVASSEUR, LOUISIANA LAW OF CONVENTIONAL OBLIGATIONS: A
PRÉCIS 3 (2010).
6
. See, e.g., JAMES GORDLEY, THE PHILOSOPHICAL ORIGINS OF MODERN
CONTRACT DOCTRINE 231−32 (1991) [hereinafter GORDLEY, PHILOSOPHICAL
ORIGINS].
7
. Compare LA. CIV. CODE art. 1839, with id. art. 1846.

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