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The Story of the Arra- Part 1 ilr.ccsenet.org International Law Research Vol. 7, No. 1; 2018 Abolishing the Doctrine of Consideration - The Story of the Arra- Part 1 Graham McBain1,2 1 Peterhouse, Cambridge, UK 2 Harvard Law School, USA Correspondence: Graham McBain, 21 Millmead Terrace, Guildford, Surrey GU2 4AT, UK. E-mail: [email protected] Received: December 26, 2017 Accepted: January 16, 2018 Online Published: February 10, 2018 doi:10.5539/ilr.v7n1p1 URL: https://doi.org/10.5539/ilr.v7n1p1 1. INTRODUCTION Consideration is a doctrine peculiar to the English common law. One unknown to other legal systems, save for those that have adopted English law.1 As Baker has pointed out, it has no competitor in terms of the diversity and complexity of historical explanations for it.2 Indeed, it is a playground of academics 3 - including academic spats.4 This is a pity since - for the professional lawyer (and, one suspects, not a few judges) - this pre-requisite for a contract ('doctrine' is too grand a word) is as clear as mud and full of anomalies. Is it needed ? Modern legal historians have (generally) concluded that this pre-requisite was a common law development. That is, one that was 'home grown' and not deriving from Roman or canon law or the Court of Chancery. It is also (generally) perceived as having originated in the civil form of action of assumpsit in Elizabethan times; Further, one can (perhaps) locate it more precisely. In Sharington v Strotton (1565),5 the word 'consideration' was used in many different senses - without emphasis on any technical legal meaning. However, in 1567, the humble earnest (arra) used for hundreds of years to evidence that parties had entered into a contract - became a legal fiction.6 Then, in 1571 and in 1584 legislation - the Fraudulent Conveyances Acts 1571 and 1584 - referred to the need for 'good consideration' (interpreted to mean 'valuable consideration').7 And, in 1577, there was mention of 'consideration' in connection with a detriment or a benefit.8 Thus, the origin of the doctrine (probably) lies in assumpsit in the period 1567-77 and, by the 1580's, the word 'consideration' in pleadings was common. 1 AKR Kiralfy, Potter's Outlines of English Legal History (5th ed, 1958), p 177 'Consideration is a peculiar doctrine of the common law, unknown to other systems.' The first edition of this work was published in 1923 (by H Potter). 2 J Baker, Collected Papers on English Legal History (Cambridge UP, 2013), vol 3, pp 1176-1201, Origins of the 'Doctrine' of Consideration 1535-1585 (1981)('Baker Doctrine'), p 1176 'No other doctrine in English law can compete with 'consideration' for the greatest diversity and complexity of historical explanations.' 3 CHS Fifoot, History and Sources of the Common Law (1949), p 398 'Any expectation that the doctrine may be approached through the medium of a preconceived, or even of a coherent, theory is doomed to disappointment. It is the congenital weakness of legal historians to pursue the mirage of continuity, and in the present contest their perspective has too often been distorted by peering into the past through nineteenth - century spectacles. Consideration has come to be regarded, not only as technical in the sense of an individual element in the action of assumpsit, but as inherently artificial and as inviting, therefore, the attention of professional inquirers.' 4 AWB Simpson, A History of the Common Law of Contract (2nd ed, 1978), p 317 'the history of consideration has given rise to an extensive literature, some of it unfortunately produced as ammunition with which to mow down writers on the modern law whose views are supposed to exhibit dangerous and heretical tendencies, and some written without the least regard for contemporary evidence.' 5 (1565) 1 Plowd 298 (75 ER 454). 6 Lord Grey's Case (1567), see 21. The arra was usually a coin (or other token) handed by one party to another in the presence of witnesses. Although it could be worthless itself, it symbolically represented (evidenced) 'consensus' and, when handed over, delivery - two pre- requisites laid down for a valid contract by Bracton (c.1250). 7 A prior Act, the Statute of Enrolments 1536 (dealing with the recording of bargains and sales), did not expressly refer to 'valuable consideration' but was interpreted as so requiring. 8 Webb's Case (1577) ''not...the profit which redounds to the [D, promisor], as the labour of [the cost to] the [P, promisee]'. Cf. the more modern formulation in Stone v Withipole (1589) where Coke argued 'The consideration is the ground of every action on the case, and it ought to be either a charge [loss] to [P, promisee] or a benefit [profit] to [D, promisor].' See 23. 1 ilr.ccsenet.org International Law Research Vol. 7, No. 1; 2018 However, despite the increasing complexity of the doctrine - and what seems to be a never ending spate of writing dedicated to analysing the modern caselaw - little attention has been devoted in English legal writing9 as to whether the doctrine is still of worth in the context of regulating, and helping, trade and commerce.10 After all, this is the point of commercial law. Its purpose is to help trade - not to be a legal museum piece or a via crucis. This article reviews the history of the doctrine - including material neglected by earlier writers, such as the law merchant, Anglo-Saxon law and the nature, and need, for tokens - including the arra. It concludes that the doctrine of consideration was connected to evidence required for the actionability (enforceability) of a contract in the king's court (but not the lesser courts). In essence, it was a pleading point. An evidential matter - which - by a sidewind - became a pre-requisite. This, mainly, as a result of legal writers11 and not the courts. More particularly, the requirement reflected a transition stage in the development of our modern law of evidence especially in relation to pleading.12 One which has lingered on, without need. As to why the doctrine of consideration arose, it was closely connected to two matters: Bracton's Pre-requisites for a Contact. The first was that Bracton (c. 1250) had established certain pre-requisites (vestments) for a valid contract.13 These included: (a) consensus (union of minds) and (b) delivery.14 As to the first, the parties had to intend to contract (not to make a gift). And, they had to come to agreement on the matter. Further, in the case of (b), they had to hand over (that is, deliver, exchange) the subject matter in the case of an immediate conclusion of the business transaction. For example, money for goods.15 There had to be 'this for that' (quid pro quo). And, a party who had not delivered his 'this' would be unable to persuade a court to require the other party to provide his 'that'. However, consensus and delivery were closely connected, in that delivery was good evidence of consensus since - in a commercial context - a person would hardly hand over his goods (or money) if he did not believe that a prior agreement had been reached; The Arra. If there was delayed payment or exchange in a business transaction, the arra was used. Today, we would call it a nominal deposit or down-payment. It was (usually) a token or coin. However, a piece of leather or lead or a jetton (an accounting or gaming counter) was, also, often used. The arra could have no value because it was not part of the contract, only evidence of it (unless it was included as part of the purchase price). However, it symbolised value. The use of an arra to 'seal the bargain' was age old. It was employed in Anglo-Saxon and Biblical times and it was also extensively employed in England until Elizabethan times and beyond.16 Thus, for a sale - in the presence of (transaction) witnesses - the buyer would hand over a penny (often called a 'God's Penny' since it had church sanction) or other small token to the seller, to bind them. The arra, then, satisfied Bracton's requirement of consensus and, when delivered, of delivery. Simple and wonderfully effective. Further, the arra did not have to be a coin. Following Biblical and imported Scandinavian practice (Vikings settled in England after AD 866) the arra could be a handshake (they called it a handsale/handseal) or a drink to seal the bargain. A seal was 9 There has been a vast amount of foreign commentary on the English doctrine. However, much of the Victorian legal writing (and quite a few modern pieces of legal writing) simply 'cherry picked' certain English cases and ignored relevant early legal texts (possibly, because they were more difficult to access). The result was a mis-leading picture, vis-a-vis the history of the doctrine. 10 The exception is an article by Lord Wright, see 39. A formidable commercial lawyer and House of Lords judge, in 1936, he wrote an excellent article advocating abolition of the doctrine. 11 Culprits are probably legal writers such as West (his Symboleography was published from 1590-1647), Fulbecke (his Parallele was published in 1601-2 and in 1618) and Cowell (his law dictionary, The Interpreter, was published from 1607-1727). Fulbecke and Cowell were both civilians and Cowell's dictionary was influential on later English dictionaries - such as the long-lasting, and popular, Law Dictionary of Jacob (published from 1729-1835). 12 Simpson, n 4, p 485 'The doctrine of consideration developed piecemeal in the typical manner of common law doctrines, and the evolution of succinct statements of the requirement was retrospective; furthermore there were, during our period, no institutional works of any quality dealing with the doctrine, so that the orthodox learning was never tidied up, and had to be gleaned from what was recorded in the disorderly law reports of the sixteenth and seventeenth centuries.' 13 Other legal writers such as Britton (c.1290) and Fleta (c.1290) followed Bracton closely on this, see 13.
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