ecome more
numerous and the situations calling for legal treatment become more
complicated, it is no longer possible to have a simple, definite,
detailed rule for every sort of case that can come before a tribunal,
nor a fixed, absolute form for every legal transaction. Hence, under
the leadership of philosophical jurists, men turn to logical
development of the "nature" or ideal form of situations and to ethical
ideas of what "good faith" or "good conscience" demands in particular
relations or transactions. The strict law, relying on rule and form,
took no account of intention as such. The words took effect quite
independently of the thought behind them. But as lawyers began to
reflect and to teach something more than a class or professional
tradition, as they began to be influenced by philosophy to give over
purely mechanical methods and to measure things by reason rather than
by arbitrary will, emphasis shifted from form to substance; from the
letter to the spirit and intent. The statute was thought of as but the
lawmaker's formulation of a principle of natural law. It was not the
_uerba_ that were efficacious, as in the strict law, which had
inherited the primitive faith in the power of words and thought of the
legal formula as if it were a formula of incantation possessing
inherent magical force. It was the _ratio iuris_, which transcended
words and formulas. So also the traditional rule was not a magic
formula discovered by our fathers. It was a customary expression of a
principle of natural law. Likewise the formal transaction was not a
bit of private magic employed to conjure up legal liability. It was
the clothing in legally recognized vestments of an intention to do
what reason and good faith demand in a given situation. When form and
intention concurred the promisor must answer for what he undertook.
When the form used did not express or went beyond the intention or was
the product of an apparent but not a real intention, the promisee was
not to be enriched unjustly at the promisor's expense on the sole
basis of the form. Moreover the duty was to be one of doing what good
faith demanded, not one of doing literally and exactly what the letter
of the undertaking called for. And although there was no express
undertaking, there might be duties implied in the relation or
situation or transaction, viewed as one of good faith, and one might
be held to a standard of action because an upright and diligent man,
who was