promisor had given the promise of free will - that is, without dolus (deceit) or metus (duress) exerted against the promisor, as well as without any error on either party’s side.118 It is here that the theories of the natural law jurists go wrong, as they consider their own theory to be self-evident, in fact so self-evident that they make the false assumption that Roman jurists must have shared their opinion on the theory of contracts.119 As an example of how Roman law had been both mis-interpreted and over-interpreted by the natural lawyers, Hägerström refers to Hugo Grotius’ controversy with François Connan (1508-1551) over the issue of whether or not the exchange of consideration was necessary for the creation of a binding obligation.120 Grotius’s considered that he had refuted Connan’s opinion by showing that the Roman jurists held the formalities of stipulations as being mere external signs of the existence of a deliberate intent. Hägerström concludes that the natural lawyers projected their own notions of law onto other epochs, thereby making the unwarranted supposition that the Romans shared the natural lawyers’ notion of law.121 In conclusion, natural law overstated the importance of will and deliberate intent for the binding character of a promise after Roman law. However, to the Romans themselves it was their fundamentally pragmatic conception of law and legal matters that was conclusive; and during the performance of a specific juridical act it was the strict observance of the formalities of Roman law, not the involved parties’ physically unobservable intentions, to which the right of an actio was coupled, which in turn constituted the demarcation line between enforceable and unenforceable agreements. p a r t v i , c h a p t e r 2 416 118 Hägerström, “Nehrman-Ehrenstråles uppfattning,” pp. 622-627; Recht, Pflicht etc, pp. 76-82. 119 Hägerström, “Nehrman-Ehrenstråles uppfattning,” p. 622; Recht, Pflicht etc, pp. 7576. 120 Grotius, De jure belli ac pacis libri tres, ed. Scott, vol. 2, II, 11 § 1. 121 Hägerström, “Nehrman-Ehrenstråles uppfattning,” p. 622; Recht, Pflicht etc, pp. 7576. See Grotius, De jure belli ac pacis libri tres, II, 11 §4, 2.
RkJQdWJsaXNoZXIy MjYyNDk=