Page:Ancient Law.djvu/344

CHAP. IX. fact being that the habit of keeping books ceased to be universal in later times, and the expression "Literal Contract," came to signify a form of engagement entirely different from that originally understood. We are not, therefore, in a position to say, with respect to the primitive Literal Contract, whether the obligation was created by a simple entry on the part of the creditor, or whether the consent of the debtor or a corresponding entry in his own books was necessary to give it legal effect. The essential point is however established that, in the case of this Contract, all formalities were dispensed with on a condition being complied with. This is another step downwards in the history of contract-law.

The Contract which stands next in historical succession, the Real Contract, shows a great advance in ethical conceptions. Whenever any agreement had for its object the deliver of a specific thing—and this is the case with the large majority of simple engagements—the Obligation was drawn down as soon as the delivery had actually taken place. Such a result must have involved a serious innovation on the oldest ideas of Contract; for doubtless, in the primitive times, when a Contracting party had neglected to clothe his agreement in a stipulation, nothing done in pursuance of the agreement would be recognised by the law. A person who had paid over money on loan would be unable to sue for its repayment unless he had