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 rounded 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
