Consensual Contract – arising from the mere consensus of the parties, without any formal or symbolic acts performed to fix the obligation

consensual contract:

1. Hist. A contract arising from the mere consensus of the parties, without any formal or symbolic acts performed to fix the obligation.  *  Although the consensual contract was known to the common law, it originated in Roman law, where it embraced four types of contracts in which informal consent alone was sufficient:

(1) an agency agreement (mandatum),
(2) a partnership agreement (societas),
(3) a sale (emptio venditio), or
(4) a letting or hiring (locatio conductio).

Cf. real contract. [1]

      Excerpt from Henry S. Maine’s Ancient Law (10th ed. 1884):

     “[T]he 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 the consent of the Parties is more emphatically given than in any other species of agreement.  But the Consensual merely indicates that the Obligation is here annexed at once to the Consensus.  The Consensus, or mutual assent of the parties, is the final and crowning ingredient in the Convention, and it is the special characteristic of agreements falling under one of the four heads of Sale, Partnership, Agency, and Hiring, that, as soon as the assent of the parties has supplied this ingredient, there is at once a Contract.  The Consensus draws with it the Obligation, performing, in transactions of the sort specified, the exact functions which are discharged, in the other contracts, by the Res or Thing . . . . [2]


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[1]: Black’s Law Dictionary Deluxe Tenth Edition by Henry Campbell Black, Editor in Chief Bryan A. Garner. ISBN: 978-0-314-61300-4

[2]: Henry S. Maine, Ancient Law 322-23 (10th ed. 1884).


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