effect. The essential point is however established that, in the case
of this Contract, all formalities were dispensed with on a condition
being complied with. This is another step downwards in the history of
contract-law.

The Contract which stands next in historical succession, the Real
Contract, shows a great advance in ethical conceptions. Whenever any
agreement had for its object the delivery of a specific thing--and
this is the case with the large majority of simple engagements--the
Obligation was drawn down as soon as the delivery had actually taken
place. Such a result must have involved a serious innovation on the
oldest ideas of Contract; for doubtless, in the primitive times, when
a contracting party had neglected to clothe his agreement in a
stipulation, nothing done in pursuance of the agreement would be
recognised by the law. A person who had paid over money on loan would
be unable to sue for its repayment unless he had formally _stipulated_
for it. But, in the Real Contract, performance on one side is allowed
to impose a legal duty on the other--evidently on ethical grounds. For
the first time then moral considerations appear as an ingredient in
Contract-law, and the Real Contract differs from its two predecessors
in being founded on these, rather than on respect for technical forms
or on deference to Roman domestic habits.

We now reach the fourth class, or Consensual Contracts, the most
interesting and important of all. Four specified Contracts were
distinguished by this name: Mandatum, _i.e._ Commission or Agency;
Societas or Partnership; Emtio Venditio or Sale; and Locatio Conductio
or Letting and Hiring. A few pages ago, after stating that a Contract
consisted of a Pact or Convention to which an Obligation had been
superadded, I spoke of certain acts or formalities by which the law
permitted the Obligation to be attracted to the Pact. I used this
language on account of the advantage of a general expression, but it
is not strictly correct unless it be understood to include the
negative as well as the positive. For, in truth, the peculiarity of
these Consensual Contracts is that _no_ formalities, are required to
create them out of the Pact. Much that is indefensible, and much more
that is obscure, has been written about the Consensual Contracts, and
it has even been asserted that in them the _consent_ of the Parties is
more emphatically given than in any other species of agreement. But
the term Conse