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

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 287–89 (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, contracts—has 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 explained—along with lengthy and verbose

legislative drafting—in 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.