This article explores how the binding nature of agreements formed and changed in medieval and modern England, and how economic change and legal justification played a role in this process. Initially, the main purpose of enforcement was to remedy non-performance of agreements, but economic changes and the influence of church law gradually legitimized the enforcement of agreements, which led to the concepts of human autonomy and responsibility in the modern legal system.
Today, we tend to think that when people reach an agreement in legal matters, the parties are bound by the terms of the agreement, and that if the agreement is not honored, they can of course go to court to enforce its performance. This idea is commonly accepted in modern society and reflects a social and legal environment that emphasizes the importance of contracts and the responsibility for their fulfillment. However, this understanding of agreements seems to have emerged only relatively recently. This is because past legal systems dealt with the binding nature of agreements and the liability that comes with them in a very different way.
Roman lawyers and medieval English judges did not believe that a party was bound by an agreement simply because it was made. They may have seen it as a moral or social commitment, but it was not considered a legally enforceable binding contract. Furthermore, the idea that if an agreement was not honored, they would have to go straight to court to enforce its fulfillment was very foreign to them. In the legal system of the time, there was a clear distinction between recovering damages for non-performance of an agreement and enforcing performance of an agreement, and litigation was primarily a vehicle for the former, not the latter.
For example, Roman lawyers believed that if a party agreed to free a slave and accepted money for it, and then failed to free the slave, it was sufficient to require the party to return the money. They did not think it necessary to force the party to free the slave. This is because they were not trying to resolve the situation from the a priori premise that agreements should be honored, but rather from the very practical question of what is a satisfactory solution to a particular dispute. For them, the law was a practical tool for resolving concrete cases, not based on abstract, theoretical legal arguments.
There are several possible explanations for this shift in perception of the binding nature of agreements. First, it is worth noting that the process of making and enforcing agreements has markedly increased the likelihood of damages that need to be redressed through litigation. Economic historians have shown that prices in England, which had been largely stable until the mid-16th century, suddenly began to rise in the late 16th century, and this change in economic indicators roughly coincides with the point at which English judges began to recognize that agreements could be enforced through litigation.
For example, consider a case where you enter into a contract of sale and the seller fails to honor it. If the price of the object hasn’t changed between the time the contract was made and the time of performance, the buyer could have entered into a contract with someone else for the same price. However, if the price has increased, the buyer will have to reenter the contract at a higher price, and the difference in price will be passed on to the buyer as damages. Therefore, scholars interpret that changes in economic conditions may have influenced changes in the litigation system. In addition to economic changes, social needs may also have been an important factor in triggering changes in the legal system. As economic activity increased, the importance of commercial contracts increased, and with it, the need to ensure legal stability and predictability.
However, changing economic conditions alone cannot explain everything. The breaking of the principle since Roman law that “an unformalized agreement alone does not create a right” required legal justification. Lawyers could not simply change the law out of economic necessity; the change had to have a legal and theoretical basis. But medieval secular law scholars found such justification impossible. It was for similar reasons that many English judges opposed enforcing settlements through litigation. The strength needed to break through this formalistic mindset came from the church.
Medieval church law was strongly colored by natural law, and the church’s ethical theologians sought to make practical judgments about what ought and ought not to be done in the court of conscience. This substantive law mindset was already enshrined in Pope Gregory IX’s 13th-century decree that “agreements, whatever form they may take, are to be observed,” and eventually provided the legal justification for the changes in English secular law in the late 16th century. In doing so, the church sought to harmonize moral and legal standards, providing a new legal rationale in favor of enforcing agreements.
Substantive rather than formal aspects of agreements were subsequently emphasized: agreements were recognized as binding on the parties as long as their content was sound, and their performance was enforceable. In the late 16th century, after a series of twists and turns, the official position of the English courts shifted, but the debate among judges did not end. Judges who supported the traditions of the past still valued formal dress, and these conservative views continued to clash in the interpretation and application of the law. It would be another 200+ years before the binding force of consensus was taken for granted without question. The law evolves with the needs of the times, but the process is not always easy and involves a variety of social, economic, and legal factors.
Scholars who focus on changing economic conditions have argued that, as prices continued to rise for nearly 200 years after the late 16th century, a legal system that enforced the fulfillment of agreements became increasingly seen as natural and just. This was not simply the result of legal arguments by lawyers, but rather a reflection of the need for a legal system that responded to economic realities. However, we should also note that nineteenth-century lawyers sought to explain the binding nature of consensus in a new light, based on the anthropocentric philosophy of modernity. They saw the binding nature of agreements as deriving from human autonomy. Since humans are autonomous beings, it is natural for them to be bound by their own agreements. This view is based on respect for human freedom and rights, and is the foundation of modern law, which holds that the law should function as a tool to guarantee the free will of individuals and impose responsibility for their choices.
