The Doctor and Student (1518)
Christopher St. Germain
What is a nude contract, or naked promise, and whether any action may lie thereon
Stud. First, it is to be understood, that contracts be grounded upon a custom of the realm, and by the law that is called jus gentium, and not directly by the law of reason: for when all things were in common, it needed not to have contracts, but after property was brought in, they were right expedient to all people, so that a man might have of his neighbour that he had not of his own; and that could not be lawfully but by his gift, by way of lending, concord, or by some lease, bargain, or sale; and such bargains and sales be called contracts, and be made by assent of the parties upon agreement between them, of goods or lands, for money, or for other recompence, but only of money usual, for money usual is no contract. And also a concord is properly upon an agreement between the parties, with divers articles therein, some rising on the one part, and some on the other. As if John at Stile letteth a chamber to Henry Hart, and it is farther agreed between them, that the said Henry Hart should go to board with the said John at Stile, and the said Henry Hart to pay for the chamber and boarding a certain sum, etc., this is properly called a Concord; but it is also a contract, and a good action lieth upon it. Howbeit it is not much argued in the laws of England what diversity is between a contract, a concord, a promise, a gift, a loan, or a pledge, a bargain, a covenant, or such other. For the intent of the law is to have the effect of the matter argued, and not the terms. And a nude contract is, when a man maketh a bargain, or a sale of his goods or lands, without any recompence appointed for it as if I say to another, I sell thee all my land, or else my goods, and nothing is assigned that the other shall give or pay, for it; this is a nude contract, and, as I take it, it is void in the law and conscience. And a nude or naked promise is, where a man promiseth another to give him certain money such a day, or to build an house; or to do him such certain service, and nothing is assigned for the money, for the building, nor for the service; these be called naked promises, because there is nothing assigned why they should be made; and I think no action lieth in those cases, though they be not performed. Also if I promise to another to keep him such certain goods safely to, such a time, and after I refuse to take them, there lieth no action against me for it. But if I take them, and after they be lost or impaired through my negligent keeping, there an action lieth.
Doct. But what opinion hold they that be learned in the law of England in such promises that be called naked or nude promises? Whether do they hold that they that make the promise be bounden in conscience to perform their promise, though they cannot be compelled thereto by the law, or not.
Stud. The books of the law of England entreat little thereof, for it is left to the determination of doctors; and therefore I pray thee shew me somewhat now of thy mind therein, and then I shall shew thee somewhat therein of the minds of divers that be learned in the law of the realm?
Doct. To declare the matter plainly after the saying of doctors, it would ask a long time and therefore I will touch it briefly, to give thee occasion to desire to hear more therein hereafter. First thou shalt understand, that there is a promise that is called an Advow, and that is a promise made to God; and he that doth make such a vow upon a deliberate mind, intending to perform it, is bound in conscience to do it, though it be only made in the heart, without pronouncing of words. And of other promises made to a man upon a certain consideration, if the promise be not against the law, as if A. promise to give B. 20l. because he hath made him such a house, or hath lent him such a thing, or other such like, I think him bound to, keep his promise. But if his promise be so naked, that there is no manner of consideration why it should be made, then I think him not bound to perform it: for it is to suppose that there were some error in the making of the promise. But if such a promise be made to an university, to a city, to the church, to the clergy, or to poor men of such a place, and to the honor of God, or such other cause like, as for maintenance of learning, of the commonwealth, of the service of God, or in relief of poverty, or such other; then I think that he is bounden in conscience to perform it, though there be no consideration of worldly profit that the grantor hath had or intended to have for it. And in all such promises it must be understood, that he that made the promise intended to be bound by his promise; for else commonly, after all doctors, he is not bound unless he were bound to it before his promise: as if a man promise to give his father a gown that hath need of it to keep him from cold, and yet thinketh not to give it him, nevertheless he is bound to give it, for he was bound thereto before. And, after some doctors, a man may be excused of such a promise in conscience by casualty that cometh after the promise, if it be so, that if he had known of the casualty at the making of the promise he would not have made it. And also such promises if they shall bind, they must be honest, lawful, and possible, and else they are not to be holden in conscience, though there be a cause, etc. And if the promise be good, and with a cause, though no worldly profit shall grow thereby to him that maketh the promise, but only a spiritual profit, as in the case before rehearsed of a promise made to an university, to a city, to the church, or such other, and with a cause, as to the honor of God, there it is most commonly holden that an action upon those promises lieth in the law canon.
Stud. Whether dost thou mean in such promises made to an university, to a city, or to such other as thou hast rehearsed before, and with a cause, as to the honor of God, or such other, that the party should be bound by his promise, if he intended not to be bound thereby yea or nay ?
Doct. I think nay, no more than upon promises made unto common persons.
Stud. And then methinketh clearly, that no action can lie against him upon such promises, for it is secret in his own conscience whether he intended for to be bound or nay. And of the intent inward in the heart, man’s law cannot judge, and that is one of the causes why the law of God is necessary, (that is to say) to judge inward things: and if an action should lie in that case in the law canon, then should the law canon judge upon the inward intent of the heart, which cannot be, as me seemeth. And therefore, after divers that be learned in the laws of the realm, all promises shall be taken in this manner: that is to say, if he to whom the promise is made have a charge by reason of the promise, which he hath also performed, then in that case he shall have an action for that thing that was promised, though he that made the promise have no worldly profit by it. And if a man say to another, heal such a poor man of his disease, or make an highway, and I will give thee thus much, and if he do it, I think an action lieth at the Common law, and moreover, though the thing that he should do be all spiritual, yet if he perform it, I think an action lieth at the Common law. As if a man say to another, fast for me all the next Lent, and I will give thee twenty pounds, and he performeth it; I think an action lieth at the Common law. And likewise if a man say to another, marry my daughter, and I will give thee twenty pounds; upon this promise an action lieth, if he marry his daughter. And in this case he cannot discharge the promise though he thought not to be bound thereby; for it is a good contract, and he may have quid pro quo, that is to say, the preferment of his daughter for his money. But in those promises made to an university, or such other as thou hast remembered before, with such causes as thou hast shewed, that is to say, to the honor of God, or to the increase of learning, or such other like where the party to whom the promise was made is bound to no new charge by reason of the promise made to him, but as he was bound to before; there they think that no action lieth against him, though he perform not his promise, for it is no contract, and so his own conscience must be his judge whether he intended to be bound by his promise or not. And if he intended it not, then he offended for his dissimulation only; but if he intended to be bound, then if lie perform it not, untruth is in him, and he proveth himself to be a liar, which is prohibited as well by the law of God as by the law of reason. And furthermore, many that be learned in the law of England hold, that a man is as much bounden in conscience by a promise made to a common person, if he intended to be bound by his promise, as he is in the other cases that thou hast remembered of a promise made to the church, or the clergy, or such other: for they say as much untruth is in the breaking of the one as of the other; and they say that the untruth is more to be pondered than the person to whom the promises be made.
Doct. But what hold they if a promise be made for a thing past, as I promise thee xl. li., for that thou hast builded me such a house, lieth an action there?
Stud. They suppose nay, but he shall be bound in conscience to perform it after his intent, as is before said.
Doct. And if a man promise to give another xl. 1. in recompence for such a trespass that he hath done him, lieth an action there?
Stud. I suppose nay, and the cause is, for that such promises be no perfect contracts. For a contract is properly where a man for his money shall have by assent of the other party certain goods, or some other profit at the time of the contract or after; but if the thing be promised for a cause that is past, by way of recompence, then it is rather an accord than a contract; but then the law is that upon such accord the thing that is promised in recompence must be paid, or delivered in hand, for upon an accord there lieth no action.
Doct. But in the case of trespass, whether hold they, that he be bound by his promise, though he intended not to be bound thereby?
Stud. They think nay, no more than in the other cases that be put before.
Doct. In the other cases he was not bound to that he promised, but only by his promise; but in, this case of trespass he was bound in conscience, before the promise; to make recompense for the trespass: and therefore it seemeth that he is bound in conscience to keep his promise, though he intended not to be bound thereby.
Stud. Though he were bound before the promise to make recompense for his trespass, yet he was not bound to no sum in certain but by his promise: and because that the sum may be too much or too little, and not egal to the trespass, and that the party to whom the trespass was done, notwithstanding the promise, is at liberty to take his action, of trespass if lie will; therefore they hold that he may be his own judge in conscience whether he intended to be bound by his promise or not, as he may in other cases; but if it were of a debt, then they hold that he is bound to perform his promise, in conscience.
Doct. What if in the case of trespass he affirmeth his promise with an oath?
Stud. Then they hold that he is bound to perform it for saving of his oath, though he intended not to be bound: but if he intended to be bound by his promise, then they say that an oath needed not but to enforce the promise; for they say, he breaketh the law of reason, which is, that we may do nothing against the truth, as well when he breaketh his promise that he thought in his own heart to be bound by, as he doth when he breaketh his oath, though the offence be not so great, by reason of the perjury. Moreover to that thou sayest, that upon such promises as thou hast rehearsed before, shall lie an action after the law canon; verily as to that in this realm there can no action lie thereon in the spiritual court, if the promise be of a temporal thing; for a prohibition or a praemunire facias should lie in that case.
Doct. That is marvel, sith there can no action lie thereon in the king’s court, as thou sayest thyself.
Stud. That maketh no matter: for though there lie no action in the king’s court against executors upon a simple contract; yet if they be sued in that case for the debt in the spiritual court, a prohibition lieth. And in like wise, if a man wage his law untruly in an action of debt upon a contract in the king’s court, yet he shall not be sued for the perjury in the spiritual court, and yet no remedy lieth for the perjury in the king’s courts; for the prohibition lieth not only where a man is sued in the. spiritual court of such things as the party may have his remedy in the king’s court, but also where the spiritual court holdeth plea, in such case where they by the king’s prerogative, and by the ancient custom of the realm, ought none to hold.
Doct. I will take advisement upon that thou hast said in this matter till another time, and I pray thee now proceed to another question.