Auf der Suche nach den Bedingungen

der Wirksamkeit des vertraglichen

Willens Alla ricerca delle condizioni di
efficacia della volontà contrattuale À la
recherche des conditions de l efficacité
de la volonté contractuelle 1st Edition
Gregor Albers Editor Francesco Paolo
Patti Editor Dorothée Perrouin Verbe
Editor
Visit to download the full and correct content document:
https://ebookstep.com/product/auf-der-suche-nach-den-bedingungen-der-wirksamkeit
-des-vertraglichen-willens-alla-ricerca-delle-condizioni-di-efficacia-della-volonta-contr
attuale-a-la-recherche-des-conditions-de-l-efficacite-de-la-v/
More products digital (pdf, epub, mobi) instant
download maybe you interests ...

Der Laborunfall Die vereitelte Suche nach dem Ursprung

des Virus 1st Edition Günter Theißen

https://ebookstep.com/product/der-laborunfall-die-vereitelte-
suche-nach-dem-ursprung-des-virus-1st-edition-gunter-theisen/

Transkulturelle Perspektiven auf Kulturen des Lernens

Wiltrud Gieseke Editor Steffi Robak Editor Ming Lieh Wu
Editor

https://ebookstep.com/product/transkulturelle-perspektiven-auf-
kulturen-des-lernens-wiltrud-gieseke-editor-steffi-robak-editor-
ming-lieh-wu-editor/

Kraft der Alterität Ethische und aisthetische

Dimensionen des Performativen Jörg Sternagel Editor
Dieter Mersch Editor Lisa Stertz Editor

https://ebookstep.com/product/kraft-der-alteritat-ethische-und-
aisthetische-dimensionen-des-performativen-jorg-sternagel-editor-
dieter-mersch-editor-lisa-stertz-editor/

Avantgarde Medien Performativität Inszenierungs und

Wahrnehmungsmuster zu Beginn des 20 Jahrhunderts
Marijana Erstic Editor Gregor Schuhen Editor Tanja
Schwan Editor
https://ebookstep.com/product/avantgarde-medien-performativitat-
inszenierungs-und-wahrnehmungsmuster-zu-beginn-
des-20-jahrhunderts-marijana-erstic-editor-gregor-schuhen-editor-
Integration durch Engagement Migrantinnen und Migranten
auf der Suche nach Inklusion Kathrin Düsener Verst

https://ebookstep.com/product/integration-durch-engagement-
migrantinnen-und-migranten-auf-der-suche-nach-inklusion-kathrin-
dusener-verst/

Instituto Nacional de Antropología e Historia 80 años

Jaime Bali Editor Adriana Konzevik Editor

https://ebookstep.com/product/instituto-nacional-de-antropologia-
e-historia-80-anos-jaime-bali-editor-adriana-konzevik-editor/

Das Design der Gesellschaft Zur Kultursoziologie des

Designs Stephan Moebius (Editor)

https://ebookstep.com/product/das-design-der-gesellschaft-zur-
kultursoziologie-des-designs-stephan-moebius-editor/

Allgemeine Deutsche Seeversicherungs Bedingungen im

Jahre 1919 herausgegeben von den deutschen
Seeversicherern nach Beratungen mit deutschen
Handelskammern und Fachverbänden unter Vorsitz der
Handelskammer Hamburg Deutsche Seeversicherer Editor
https://ebookstep.com/product/allgemeine-deutsche-
seeversicherungs-bedingungen-im-jahre-1919-herausgegeben-von-den-
deutschen-seeversicherern-nach-beratungen-mit-deutschen-
handelskammern-und-fachverbanden-unter-vorsitz-der-handelsk/

Studien zum 7 Jahrhundert in Byzanz Probleme der

Herausbildung des Feudalismus Helga Köpstein Editor
Friedhelm Winkelmann Editor

https://ebookstep.com/product/studien-zum-7-jahrhundert-in-
byzanz-probleme-der-herausbildung-des-feudalismus-helga-kopstein-
editor-friedhelm-winkelmann-editor/
Beiträge zum ausländischen und internationalen Privatrecht

137

Herausgegeben vom
Max-Planck-Institut für ausländisches
und internationales Privatrecht

Direktoren:
Holger Fleischer, Ralf Michaels und Reinhard Zimmermann
 Causa contractus
Auf der Suche nach den Bedingungen
der Wirksamkeit des vertraglichen Willens
Alla ricerca delle condizioni di efficacia
della volontà contrattuale
À la recherche des conditions de l’efficacité
de la volonté contractuelle

Edited by
Gregor Albers, Francesco Paolo Patti
and Dorothée Perrouin-Verbe

Mohr Siebeck
Gregor Albers is assistant professor (Akademischer Rat) at the Institute for Roman Law and
Comparative Legal History at the University of Bonn.

Francesco Paolo Patti is associate professor at the University Bocconi of Milan.

Dorothée Perrouin-Verbe is a PhD candidate at the University of Paris II-Panthéon-Assas and

teaches at CY Cergy Paris Université.

ISBN 978-3-16-158244-8 / eISBN 978-3-16-158245-5

DOI 10.1628/978-3-16-158245-5
ISSN 0340-6709 / eISSN 2568-6577
(Beiträge zum ausländischen und internationalen Privatrecht)
The Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbibliographie;
detailed bibliographic data are available on the Internet at http://dnb.dnb.de.

© 2022 Mohr Siebeck Tübingen. www.mohrsiebeck.com

This book may not be reproduced, in whole or in part, in any form (beyond that permitted by
copyright law) without the publisher’s written permission. This applies particularly to reproduc-
tions, translations and storage and processing in electronic s­ ystems.
The book was printed on non-aging paper by Gulde-Druck in Tübingen, and bound by Groß­
buch­binderei Spinner in Ottersweier.
Printed in Germany.
 Preface
Preface
Gregor Albers, Francesco Paolo Patti, Dorothée Perrouin-Verbe

The foundations of contract law are nowadays rarely discussed in continental

Europe. However, European legal tradition provides a distinct focal point for such
discussion: the notion of causa; a term used both to identify a contract’s under-
lying purpose and to address the reasons for its enforcement.
The doctrine of causa can be traced back to medieval Roman law scholars. In­
formed by Aristotle’s theory of causes, they focused on causa finalis and i­ nsisted
that a contract, as a form of human action, had to be described with regard to the
aims it pursues. While early modern natural lawyers took a narrower view on the
will of the parties and focused on a contract’s content, causa persisted. With the
help of Domat and Pothier, it made its way into the Code Napoléon: under arti-
cle 1108, a valid contract required une cause licite dans l’obligation. From the
French archetype, causa spread into all the codes modelled thereafter. In the 20th
century, Emilio Betti defined causa as the economic and social function of a con­
tract (funzione economico-sociale del negozio). This understanding facilitated the
integration of the notion in Italy’s 1942 Codice civile, as it made it possible to
evaluate private conduct by its social utility. Ever since the national codifications
entered into force, jurisprudence has not ceased to develop new interpretations
of causa. The notion’s continuing appeal is attested by the fact that in 2017 ­causa
was implemented as a necessary element of contract in the Principles of Latin
American Contract Law.
For the last two hundred years, the notion of causa of contract has faced in-
creasingly strong headwinds. The French provisions provoked a major debate in
19th century German jurisprudence, a debate which ultimately resulted in their
rejection and a strong commitment not to accept any prerequisite for the creation
of legal effects other than the agreement of capable parties. However, it is hard
not to look for reasons: Although German law explicitly permits a contract to be
detached from its cause (abstraktes Versprechen), the obligation created by such
a contract can be the object of a restitutionary claim based on the doctrine of un­
just enrichment. The test applied to determine whether an enrichment is unjust
asks – of all things – whether or not it is based on a sufficient cause (Rechtsgrund).
However, the apparent refusal to adopt causa contractus in Germany has con-
tributed to its lack of success in projects for a common European law of contracts.
An even more decisive factor for that failure might have been that causa is alien
to the English common law (at least if one fails to recognise it in the element of
consideration, which, in itself, has been the object of strong criticism for about
VI Gregor Albers, Francesco Paolo Patti, Dorothée Perrouin-Verbe

the same period of time causa has been under fire). Swayed by a perceived in-
ternational trend against causa and weary of the endless debate on its meaning,
France herself, when reforming her law of obligations in 2016, decided to dispense
with the word cause in the new code. Whether the notion has perished with the
word is a matter of debate. Not all countries are affected by these developments,
though. In Italian case law, the concept is widely used to facilitate the application
of different doctrines that require a precise scrutiny of the actual contractual pur­
pose (causa concreta).
Against the background of these developments, it is remarkable that common
law scholars in North America – notorious for their scepticism towards legal
doctrine – have shown a growing interest in the theoretical foundations of contract
law. They seek to align the results of their philosophical reasoning about contract
with existing contract law doctrine. The apparent need for contract theory raises
the question whether European jurists, to open their door into that realm, should
not rather hold on to the key provided by the tradition of causa.
To revive the discourse of the ius commune, this book proposes to combine
legal history and comparative law. Its first part portrays the development of the
notions of causa, cause, Voraussetzung, Geschäftsgrundlage and consideration.
Across time and space, these notions have served two purposes: to determine the
legal validity of a contractual agreement and to allow for an adaption or cancel-
lation of its legal effects due to a supervening change of circumstances. The
second part of the book examines how these two issues are addressed by differ-
ent legal systems, even if not all those systems frame the answers in terms of
causa. Individual reports cover ancient Roman law and the French, German,
Italian and English legal systems. We hope that the integration of both a doctrin­
al and a functional approach will allow for a clear view on the doctrinal and po­
litical question at hand: Do we still need causa in European private law? The
future of cause is explored in the third and last part of the book. For a summary
of the different sections, we invite the reader to consult the English-language
introductory chapters. A further explanation of the book’s outline (as well as an
attempt at justification) is given in the very first chapter.
This book grew out of a series of three conferences held at Villa Vigoni (Me-
naggio) between 2016 and 2018.1 As Trilaterale Forschungskonferenzen, they
were funded by the joint efforts of Villa Vigoni, the Deutsche Forschungsgemein-
schaft and the Maison des Sciences de l’Homme. We are very grateful for this
unique opportunity for encounter and exchange. Personally, we are greatly i­ ndebted
to Professor Emanuelle Chevreau, Professor Tommaso dalla Massara and Profes­
sor Martin Schermaier, who did not hesitate a moment to push forward a proj­ect

1
For a report on the first meeting (November 28 - December 2, 2016) see Martina ­D’Onofrio,
ZRG RA 134 (2017) 709-711 (in German); Marta Beghini, QLSD 2017, 482-484 (in Italian).
On the second meeting (September 18-21, 2017) see D’Onofrio, ZEuP 2018, 478-420 (in
German) and Index 46 (2018) 817-821 (in Italian). On the third meeting (September 19-22,
2018) see Marie Rögels, ZEuP 2019, 416-419 (in German).
 Preface VII

conceived by younger scholars, to carry the weight of responsibility for the

conferences and to enrich them with substantial contributions.
This publication has been made possible by the Max Planck Institute for Com­
parative and International Private Law (MPI) in Hamburg. We are grateful to
Professor Reinhard Zimmermann for supporting the project over the years and
for the trust he and the other editors have placed in us when accepting the volume
for this series.
Many hands – and minds – have contributed to the editing of the book. The
main part of the work has been done by the editorial office of the MPI under the
direction of Dr Christian Eckl. Our thanks go to Janina Jentz for her diligence
and patience and to Anja Rosenthal for the careful layout.
Several assistants at the MPI and at the Institute for Roman Law and Com-
parative Legal History in Bonn have helped with various tasks, especially proof-
reading the articles and redacting the indexes. Special thanks go to Jolanda Müller
(Bonn) and Michael Friedman (MPI) for drafting translations and reviewing texts
written in English.
Nearly all contributions to the book were finished by the beginning of 2020.
In the meantime, a pandemic has entered and still continues to dominate our lives.
Although it is scarcely mentioned in the book, readers might find that the pan-
demic sheds a light of topicality on some of the arguments brought forward on
the following pages: Reflecting on the relationship between a contract, its cir-
cumstances and the purposes of the parties, contract law scholarship might be
able to provide guidance also for cases that some might consider unprecedented.

Gregor Albers, Francesco Paolo Patti, Dorothée Perrouin-Verbe

Bonn, Milan, Paris
7 February 2022
 Contents
Contents
Contents

Preface��������������������������������������������������������������������������������   V
Abbreviations���������������������������������������������������������������������� XIII

Gregor Albers
Why Cause of Contract again, and how?����������������������������������������   1

I. History of a Notion

Gregor Albers
History of a Notion����������������������������������������������������������������� 19

Tommaso dalla Massara

Die causa des Vertrages im Denken des Aristo:
zu den Ursprüngen einer Idee����������������������������������������������������� 37

Arnaud Paturet
La cause contractuelle aux confins de l’anthropologie et du droit������������ 67

Martin Schermaier
Die Rolle der causa bei der Überwindung des Typenzwangs durch die
mittelalterlichen Juristen����������������������������������������������������������� 97

Klaus Kowalski
Die causa des Vertrages im Naturrecht der frühen Neuzeit������������������� 153

Andrea Maria Garofalo

Itinerari della causa dal Code civil del 1804 al Codice civile del 1942������ 201

Francesca Bartolini
La causa del contratto dal Codice civile del 1942 ai giorni nostri������������ 247
X Contents

Gregor Albers
Die causa vom Code civil zum BGB. Zuwendungen tragen statt
­Verpflichtungen begründen�������������������������������������������������������� 263

Birke Häcker
Causa und consideration. Ein historischer Dialog����������������������������� 323

II. Conclusion of Contract

Dorothée Perrouin-Verbe
Causa and the Requirements of Valid Contracts�������������������������������� 373

Elena Giannozzi
Le caractère contraignant des contrats en droit romain classique������������� 385

Samuel Fulli-Lemaire
Le rôle passé de la cause au stade de la formation du contrat����������������� 407

Ralf Treibmann
Voraussetzungen der Wirksamkeit von Verträgen nach deutschem Recht��� 425

Andrea Maria Garofalo / Francesco Paolo Patti

La causa tra fisiologia e patologia del contratto��������������������������������� 455

Kristin Boosfeld
Äquivalente der causa beim Vertragsschluss.
Ein Blick ins englische Recht����������������������������������������������������� 499

III. Unexpected Circumstances

Francesco Paolo Patti

Causa and Unexpected Circumstances������������������������������������������� 517

Manuel Grasso
Obligationes contractae e sopravvenienze nel diritto romano���������������� 531

Dorothée Perrouin-Verbe
L’évènement imprévu et le bouleversement de l’équilibre contractuel
en droit français��������������������������������������������������������������������� 553
 Contents XI

Gregor Albers
Der Einfluss unerwarteter Ereignisse auf den Vertrag nach
deutschem Recht�������������������������������������������������������������������� 573

Francesco Paolo Patti

Sopravvenienze e causa concreta nel diritto italiano��������������������������� 637

Francesco Mezzanotte
Lo scopo contrattuale nella doctrine of frustration����������������������������� 675

IV. Future of causa

Gregor Albers / Francesco Paolo Patti / ‌Dorothée Perrouin-Verbe

The Future of causa���������������������������������������������������������������� 705

Thomas Genicon
L’avenir de la cause en droit français des contrats������������������������������ 715

Elena Bargelli
Il futuro della causa nel diritto italiano������������������������������������������� 733

Horst Ehmann
Zu den Arten der Rechtsgründe von Leistungen und
Leistungs­versprechen. Von der causa-Lehre zur Zwecklehre����������������� 755

Simon Whittaker
“Contractual Purpose” in English Contract Law�������������������������������� 871

Index of Sources�������������������������������������������������������������������� 893

About the Authors������������������������������������������������������������������� 927
 Abbreviations
Abbreviations
Abbreviations

a. articulus / articuli
a. a. O. am angegebenen Ort
AC Law Reports, Appeal Cases
Acc. Naz. Linc. Accademia Nazionale dei Lincei
AcP Archiv für die civilistische Praxis
AD / Appellate Div. Rep. Appellate Division Reports (South Africa, 1919–1946)
Ad. & El. Adolphus & Ellis’ Queen’s Bench Reports
AG Amtsgericht
AJAH American Journal of Ancient History
al. alinéa
Aleyn Aleyn’s Reports, King’s Bench
All ER All England Law Reports
All ER (Comm) All England Law Reports (Commercial Cases)
Am. J. Comp. L. American Journal of Comparative Law
Am. J. Int. L. American Journal of International Law
Anm. Anmerkung
Ann. Fac. giur. Un. Mac. Annuali della Facoltà giuridica dell’Università di Macerata
ANRW Aufstieg und Niedergang der römischen Welt
APD Archives de philosophie du droit
App. Corte d’appello
App. Cas. Law Reports, Appeal Cases (2nd Series)
Arch. civ. Archivio civile
Arch. locazioni Archivio delle locazioni, del condominio e dell’immobiliare
Arch. giur. circol. e sinistri Archivio giuridico della circolazione e dei sinistri stradali
arg. argumentum
art. / Art. articulus / article / Artikel / articolo
artt. articles / articoli
Ass. plén. Assemblée plénière de la Cour de cassation
AUPA Annali del Seminario giuridico della Università di Palermo
Aufl. Auflage
av. avant

B&C Barnewall & Cresswell’s King’s Bench Reports

B. & S. Best & Smith’s Queen’s Bench Reports
Banca, borsa tit. cred. Banca, borsa e titoli di credito
BeckOK Beck’scher Online-Kommentar
Belg. Jud. Belgique Judiciaire
BGB Bürgerliches Gesetzbuch (aktuelle Fassung)
BGB 1900 Bürgerliches Gesetzbuch in der zum 1.1.1900 in Kraft
getretenen Fassung
XIV Abbreviations

BGB 2002 Bürgerliches Gesetzbuch in der ab dem 1.1.2002 geltenden

Neufassung
BGBl. Bundesgesetzblatt
BGH Bundesgerichtshof
BGHZ Entscheidungen des Bundesgerichtshofs in Zivilsachen
Bibl. juriscons. publ. Bibliothèque du jurisconsulte et du publiciste
BIDR Bullettino dell’Istituto di diritto romano « Vittorio Scialoja »
BMJ Bundesministerium der Justiz
BRD Bundesrepublik Deutschland
BR-Drs. Bundesratsdrucksache
Brown Parl. Cas. J. Brown’s Cases in Parliament
BT-Drs. Bundestagsdrucksache
Bull. civ. Bulletin civil de la Cour de cassation
Burr. Burrow’s King’s Bench Reports tempore Mansfield
BVerfG Bundesverfassungsgericht
BVerfGE Entscheidungen des Bundesverfassungsgerichts
BVerwG Bundesverwaltungsgericht
bzw. beziehungsweise

C. Causa / Codex
c. canon/canones
c. c. Codice civile
C. I. L. Corpus Inscriptionum Latinarum
C. L. C. Commercial Law Cases
CA Court of Appeal
Cambridge L. J. Cambridge Law Journal
Camp. Campbell’s Nisi Prius Cases
cap. caput / capita
Cape Supreme Court Rep. Cape Supreme Court Reports (South Africa, 1880–1910)
Cass. Cour de cassation / Corte di Cassazione
CCC Contrats concurrence consommation
CESL Common European Sales Law
Cf. confer
Cfr. confronta
Ch Law Reports, Chancery Division (3rd Series)
ch. chapter
Civ. (1ère, 2ème , 3ème) Chambre civile de la Cour de cassation (première,
deuxième, troisième)
CLR Commonwealth Law Reports (Australia)
Co. Rep. Coke’s King’s Bench Reports
Col. L. Rev. Columbia Law Review
Com. Chambre commerciale de la Cour de cassation
Contratti i Contratti. Bimestrale di dottrina, giurisprudenza e
pratiche contrattuali
Contratto e impr. Contratto e impresa
Contratto e impr. Europa Contratto e impresa Europa
Corriere giur. Il Corriere giuridico. Mensile di giurisprudenza civile,
legislazione e opinioni
Cowp. Cowper’s King’s Bench Reports
cpv. capoverso
 Abbreviations XV

D Recueil Dalloz
D. Digesta
d. h. das heißt
Danno e resp. Danno e responsabilità
DCFR Draft Common Frame of Reference
DDR Deutsche Demokratische Republik
Defrénois Répertoire Defrénois
dens. denselben
ders. derselbe
DH Recueil hebdomadaire de jurisprudence Dalloz (avant
1941)
DHA Dialogues d’Histoire Ancienne
dies. dieselbe
Dig. disc. priv., Sez. civ. Digesto (discipline privatistiche) sezione civile
Dir. sous la direction de
Dir. comm. internaz. Diritto del commercio internazionale
Dir. giur. Diritto e giurisprudenza
Dir. giust. Diritto e giustizia
Dir. mar. Il diritto marittimo
dir. priv. diritto privato
dir. rom. diritto romano
dir. vig. diritto vigente
disp. disputatio / disputationes
DJT Deutscher Juristentag
DJZ Deutsche Juristenzeitung
DÖV Die Öffentliche Verwaltung. Zeitschrift für Öffentliches
Recht und Verwaltungswissenschaften
DP Recueil périodique et critique mensuel Dalloz (avant 1941)
Dr. et patr. Droit et patrimoine
dub. dubitatio / dubitationes

EI Entwurf eines bürgerlichen Gesetzbuches für das Deutsche

Reich. Erste Lesung. Ausgearbeitet durch die von dem
Bundesrathe berufene Kommission
E II Entwurf eines bürgerlichen Gesetzbuches für das Deutsche
Reich. Zweite Lesung. Nach den Beschlüssen der
Redaktions­kommission
E. B. & E Ellis, Blackburn & Ellis’ Queen’s Bench Reports
E. G. L. R. Estates Gazette Law Reports
E. R. / Eng. Rep. English Reports
East East’s Term Reports, King’s Bench
ED Enciclopedia del Diritto
Éd. / ed. Édition /edition
ERCL European Review of Contract Law
ERPL European Review of Private Law
Europa dir. priv. Europa e diritto privato
EWCA Civ England & Wales Court of Appeal (Civil Division)
EWHC England & Wales High Court
Exch Exchequer Reports
XVI Abbreviations

f. folgende / following
Fam. dir. Famiglia e diritto
ff. folgende / following
Fn. Fußnote
fol. folium / folia
Foord’s Rep. Foord’s Reports
Foro amm. TAR Il Foro amministrativo – T.A.R.
Foro it. Il Foro italiano
FS Festschrift

Gaz. Pal. Gazette du Palais

GG Grundgesetz
Giur. comm. Giurisprudenza commerciale
Giur. it. Giurisprudenza italiana
Giust. civ. Giustizia civile
gl. glossa
Gruchot Beiträge zur Erläuterung des deutschen Rechts / Gruchots
Beiträge
GS Gedächtnisschrift

h. M. herrschende Meinung
H. & N. Hurlstone & Norman’s Exchequer Reports
Harv. L. Rev. Harvard Law Review
HCA High Court of Australia
Hg. Herausgeber
hgg. / hrsg. herausgegeben
HKK Historisch-Kristischer Kommentar zum BGB, hrsg.
von Mathias Schmoeckel / Joachim Rückert / Reinhard
Zimmermann
HL House of Lords
HLC. / HL Cas Clark & Finnelly’s House of Lords Reports New Series

i. e. id est
ibid ibidem
id. idem
Index Index. Quaderni Camerti di studi romanistici
Inst. Institutiones
Israel L. Rev. Israel Law Review

J Justice
J. C. Jésus-Christ
JCP Semaine juridique (édition générale)
JCP E Semaine juridique (édition entreprise)
JR Juristische Rundschau
JZ Juristenzeitung

KB Law Reports, King’s Bench Division

KE Kommissionsentwurf
 Abbreviations XVII

Law & Hist. Rev. Law and History Review

Law Quart. Rev. Law Quarterly Review
Law Rev. Law Review
Ld. Raym. Lord Raymond’s King’s Bench and Common Pleas
Reports
Leon. Leonard’s Reports
LG Landgericht
lib. liber / liberi
LJ / LLJ Lord/Lady Justice / Justices
Lloyd’s Rep. Lloyd’s Law Reports
LPA Les Petites Affiches
LR CP Law Reports, Common Pleas (1st Series)
LR Ex Law Reports, Exchequer Cases
LR QB Law Reports, Queen’s Bench (1st Series)
LT Law Times Reports

m. w. N. mit weiteren Nachweisen

MEFRA Mélanges de l’École française de Rome
Mod. L. Rev. Modern Law Review
Motive Motive zu dem Entwurfe eines Bürgerlichen Gesetzbuches
für das Deutsche Reich
Mugdan Die gesammten Materialien zum Bürgerlichen Gesetzbuch
für das Deutsche Reich

n° / n. numéro / numero
N. E. North Eastern Reporter
N. W. North Western Reporter
Nr. Nummer
num. numerus / numeri
NJW Neue Juristische Wochenschrift
NJW-FER NJW-Entscheidungsdienst Familien- und Erbrecht
NJW-RR Neue Juristische Wochenschrift Rechtsprechungs-Report
Nov. dig. it. Novissimo Digesto Italiano
NSWLR New South Wales Law Reports (Australia)
nt. nota
Nuova giur. civ. comm. Nuova giurisprudenza civile commentata
Nuova riv. dir. comm. Nuova rivista di diritto commerciale, diritto dell’economia,
diritto sociale
NZLR New Zealand Law Reports

OGH Oberster Gerichtshof

OHGZ Entscheidungen des Obersten Gerichtshofes für die
Britische Zone in Zivilsachen
OIR Orbis iuris Romani – Journal of Ancient Law Studies
OLG Oberlandesgericht
op. cit. opere citato
OR Obligationenrecht
ord. ordinanza
XVIII Abbreviations

p. pagina / page
para. / paras. paragraph, paragraphes
PC Privy Council
PECL Principles of European Contract Law
Plow. Plowden’s Commentaries or Reports
pp. paginae / pages / pagine / pages
Protokolle Protokolle der Kommission für die zweite Lesung des
Entwurfs des Bürgerlichen Gesetzbuchs
PUAM Presses universitaires d’Aix-Marseille
PUF Presses universitaires de France

QB Law Reports, Queen’s Bench Division (3rd Series)

QBD Queen’s Bench Division
QLSD Quaderni Lupiensi di Storia e Diritto
qu. quaestio / quaestiones
Quaderni Fiorentini Quaderni Fiorentini per la storia del pensiero giuridico
moderno
Queen’s Bench Rep. Queen’s Bench Reports (1841–1852)

Rass. dir. civ. Rassegna di diritto civile

RDC Revue des contrats
REA Revue des études anciennes
Real. Ist. lomb. Scienz. lett. Rend. Reale Istituto Lombardo di Scienze e Lettere. Rendiconti
REL Revue des Études Latines
Rép. civ. Encyclopédie Dalloz, Répertoire de droit civil
Rep. Foro it. Repertorio del Foro italiano
resp. responsio / responsiones
Resp. civ. prev. Responsabilità civile e previdenza
Rev. int. dr. comp. Revue internationale de droit comparé
RG Reichsgericht
RGBl. Reichsgesetzblatt
RGZ Entscheidungen des Reichsgerichts in Zivilsachen
RH Revue Historique
RIDA Revue internationale des droits de l’Antiquité
Riv. crit. dir. priv Rivista critica del diritto privato
Riv. dir. banc. Rivista di diritto bancario
Riv. dir. civ. Rivista di diritto civile
Riv. dir. comm. Rivista del diritto commerciale e del diritto generale
delle obbligazioni
Riv. not. Rivista del notariato
Riv. trim. dir. proc. civ. Rivista trimestrale di diritto e procedura civile
Rn. Randnummer
Rom. Amer. Roma e America. Diritto romano comune. Rivista di
diritto dell’integrazione e unificazione del diritto in
Europa e in America Latina
Roma Tre L. Rev. Roma Tre Law Review
RTD civ. Revue trimestrielle de droit civil
Rz. Randziffer
 Abbreviations XIX

s. suivante / e seguente
S. Seite
s. v. sub voce
SA Law Rep., Appellate Div. South Africa Law Reports, Appellate Division
Sächs. Archiv Sächsisches Archiv für bürgerliches Recht und Prozeß /
Säch­sisches Archiv für deutsches bürgerliches Recht
Salk Salkeld’s King’s Bench Reports
ScheckG Scheckgesetz
SDHI Studia et documenta historiae et iuris
sez. Sezione
sez. un. Sezioni unite
Sp. Spalte
spéc. spécialement
ss. e seguenti
Str. Strange’s King’s Bench Reports
StVG Straßenverkehrsgesetz

t. u. f. Decreto Legislativo del 24 febbraio 1998, n. 58

Tem. em. Temi emiliana
Term Rep. Term Reports (Durnford & East), King’s Bench
Th. L. L. Thesaurus Linguae Latinae
TLR Times Law Reports
tom. tomus / tomi
TR Tijsdchrift voor rechtsgeschiedenis – Revue d’histoire du
droit
tr. / Trad. translation / traduction
Transvaal Supreme Court Rep. Transvaal Supreme Court Reports (South Africa, 1904-1909)
Trib. Tribunale

u. a. unter anderem
UKHL United Kingdom House of Lords
UKPC United Kingdom Privy Council
UKSC United Kingdom Supreme Court
Univ. Queensland Law Journal University of Queensland Law Journal (Australia)

v versus
v. voir / vedi
v. not. voir notamment
vgl. vergleiche
Vita not. Vita notarile
vol. volume
VwVfG Verwaltungsverfahrensgesetz

W. Jones W. Jones’ King’s Bench and Common Pleas Reports

WG Wechselgesetz
WLR Weekly Law Reports
WM Wertpapier-Mitteilungen. Zeitschrift für Wirtschafts- und
Bankrecht
XX Abbreviations

Yale L. J. Yale Law Journal

Z. Zeile
ZEuP Zeitschrift für Europäisches Privatrecht
ZGB DDR Zivilgesetzbuch der DDR
Ziff. Ziffer
ZRG GA Zeitschrift der Savigny-Stiftung für Rechtsgeschichte,
Germanistische Abteilung
ZRG RA Zeitschrift der Savigny-Stiftung für Rechtsgeschichte,
Romanistische Abteilung
Gregor Albers, Why Cause of Contract again, and how? An Introduction

Why Cause of Contract again, and how?

Why Cause of Contract again, and how?
Gregor Albers
Gregor Albers
“The fundamental things apply
as time goes by.”
From the movie Casablanca (1942)

I. Resilience of a notion����������������������������������������������������������������� 1
II. Why? Fundamental problems��������������������������������������������������������� 4
III. How? The chosen approach���������������������������������������������������������� 12
IV. A prospect��������������������������������������������������������������������������� 15

I. Resilience of a notion
One might wonder whether we still need to talk about it. The reform of the French
law of obligations, the ordonnance from 10 February 2016, has deleted cause as
a requirement for the creation of a valid contract from the Code civil.1
From 1804 until then, the Code’s venerable article 1108 had listed the neces-
sary elements of a valid contract (convention). Besides consent and capacity of
the party incurring an obligation, it required not only that this obligation had a
determined object, but also that it was based on a legitimate cause.2 For all con-
tracts concluded since 1 October 2016, the new article 1128 n. 3 of the Code asks
for no more than a legitimate and specified content.3
To many, this abolition of cause has appeared to be merely the last step of a
continuous and rather necessary process.4 In 1992, the Dutch had expelled the

1
Ordonnance n° 2016-131 du 10 février 2016 portant réforme du droit des contrats, du
régime général et de la preuve des obligations, JORF n°0035 du 11 février 2016, texte n. 26.
2
Art. 1108 Code civil 1804: “Quatre conditions sont essentielles pour la validité d’une
convention: Le consentement de la partie qui s’oblige ; Sa capacité de contracter ; Un objet
certain qui forme la matière de l’engagement ; Une cause licite dans l’obligation”.
3
Art. 1128 Code civil 2016: “Sont nécessaires à la validité d’un contrat: 1° Le consentement
des parties ; 2° Leur capacité de contracter ; 3° Un contenu licite et certain”.
4
For criticism of causa from a historical and comparative point of view, see Ernest G.
Lorenzen, Causa and Consideration in the Law of Contracts, Yale L. J. 28 (1919) 621–646; John
P. Dawson, Gifts and Promises. Continental and American Law Compared (New Haven / Lon­
don 1980) 114–116; Konrad Zweigert / Hein Kötz, An Introduction to Comparative Law (tr. Tony
2 Gregor Albers

oorzak from their new civil code.5 In 1994, the UNIDROIT Principles had pro-
claimed: “A contract is concluded, modified or terminated by the mere agreement
of the parties, without any further requirement”.6 Not only had that been upheld
by the Principles of European Contract law7 in 1998 and later by the Draft
Common Frame of Reference,8 where it might be argued that German lawyers
had the upper hand, even the working group led by Giuseppe Gandolfi, which
had published the first part of its Avant-projet of a Code Europeen des contrats
in 2001, had turned away from causa as a necessary element of contract.9
This tendency has supported the claim of the French reformers that abolishing
cause would align the Code with foreign legal systems, thus furthering one of
the main aims of the reform: to increase the international attraction of France as
a place to “do business”.10 We have now come to a point where causa has been
reduced to a mere footnote in the Oxford Handbook on Comparative Law.11

Weir, 3rd ed., Oxford / New York 1998) 381; Reinhard Zimmermann, The Law of Obligations.
Roman Foundations of the Civilian Tradition (Cape Town / W ‌ etton / J‌ ohannesburg 1990) 553.
5
Art. 1356 Burgerlijk Wetboek 1838 followed art. 1108 Code civil 1804 and required a
“geoorloofde oorzaak” as a fourth condition for a valid obligation. The Nieuw Burgerlijk Wet­
boek 1992 manages without summing up the conditions of a contract. Instead, art. 3:40 declares
void any legal act that in its content (“inhoud”) or aim contravenes good morals, public order
or mandatory statutes. See Hans Ankum, La causa del contratto nello sviluppo del diritto olandese
fino al nuovo codice civile del 1992, in: Letizia Vacca (ed.), Causa e contratto nella ­prospettiva
storico-comparatistica (Turin 1997) and extensively Yorick M. Ruland, Die Causa der ­Obligation.
Rechtshistorische und rechtsvergleichende Perspektive nach Einführung des Nieuw Burger­lijk
Wetboek in den Niederlanden (Cologne / B ‌ erlin / ‌Munich 2004), in particular 13, 138 ff.
6
Art. 3.2 UNIDROIT Principles of International Commercial Contracts (International
Institute for the Unification of Private Law, Rome 1994).
7
See art. 2:101 (1): “A contract is concluded if: (a) the parties intend to be legally bound,
and (b) they reach a sufficient agreement without any further requirement”; Ole Lando / H ‌ ugh
Beale (eds.), Principles of European Contract Law, Parts I and II, Combined and Revised (The
Hague 2000).
8
See art. II-4:101: “A contract is concluded, without any further requirement, if the parties:
(a) intend to enter into a binding legal relationship or bring about some other legal effect; and
(b) reach a sufficient agreement”; Christian von Bar / E ‌ ric Clive / H
‌ ans Schulte Nölke et al.
(eds.), Principles, Definitions and Model Rules of European Private Law. Draft Common Frame
of Reference (DCFR). Interim Outline Edition (Munich 2008).
9
See art. 5 n. 3 (“Les éléments essentiels du contrat sont : a) l’accord des parties; b) le con­
tenu.”); on “Autonomie contractuelle” cf. art. 2 n. 1: Code Europeen des Contrats. Avant-­projet
(Milan 2001). From the commentary by Giuseppe Gandolfi cf. in particular 125 ff., 142 ff.
10
See Rapport au Président de la République relatif à l’ordonnance n° 2016-131 du 10
février 2016 portant réforme du droit des contrats, du régime général et de la preuve des obli-
gations, JORF n°0035 du 11 février 2016, texte n. 25. For the reference to the “Doing business”
reports of the World Bank, cf. on page 2 under “Genèse de la reforme”.
11
Hein Kötz, Comparative Contract Law, in: The Oxford Handbook of Comparative Law,
ed. by Mathias Reimann / R ‌ einhard Zimmermann (2nd ed., Oxford 2019) 902–932, 909 n. 24:
“French law used to follow a rule […]”. More generous is Gregor Christandl, in: ­Commentaries
on European Contract Laws, ed. by Nils Jansen / ‌Reinhard Zimmermann (Oxford 2018) Art. 2:101
(1) n. 19 (245–247).
 Why Cause of Contract again, and how? 3

But the rebuttal of causa is not universal. To the contrary, the notion still pros­
pers in many legal orders. Those countries which once embraced cause together
with Napoleon’s Code do not seem to be inclined to follow the French example
again, this time abolishing it.12 As recent as 2017, the Principles of Latin Ameri-
can Contract Law upheld explicitly that: “Consent, subject-matter, cause, and in
certain cases, formalities, are the elements required to form a contract”.13
Even where, in the attempt to depart with causa, one succeeds to erase it from
a code, it is doubtful whether that makes the doctrine disappear. One example is
well known in Germany: An obligation can be countered with the objection that
it unjustly enriches the creditor. Studying the reason for this objection (usually
described as its lack of cause), Bernhard Windscheid had identified it with the
non-fulfilment of a presupposition (Voraussetzung) of the promisor. When the
commission in charge of drafting the Civil Code refused to enshrine that theory,
he made a prophecy: Thrown out of the door, it would come back in through the
window.14 Some thirty years later, he was proven right by the general recognition
of the doctrine of basis of contract (Geschäftsgrundlage).15 A similar metaphor
has now been used by a French politician to mollify concerns about the removal of
cause: “If cause has left towards the garden, it has re-entered from the courtyard”.16

12
In Italy, few wish to change article 1325 or 1343 of the Codice civile of 1942; see Elena
Bargelli, Il futuro della causa nel diritto italiano, in this volume, 733–754. On Quebec, Cali­
­fornia, Louisiana and South Africa see Birke Häcker, Causa und consideration. Ein historischer
Dialog, in this volume, 323–369 (348–353). For Belgium, see art. 5.27 of the proposed law
of obligations (n°55-1806/1).
13
The English translation of the article has been taken from Rodrigo Momberg / ‌Stefan
Vogenauer (eds.), The Future of Contract Law in Latin America: The Principles of Latin Ameri­
can Contract Law (Oxford 2017). In the original version, art. 9 reads: “Elementos del contrat-
to. Son elementos para la formación del contrato, el consentimiento, el objeto, la causa y en
ciertos casos, la solemnidad”; Iñigo de la Maza / ‌Carlos Pizarro / ‌Álvador Vidal (coord. and eds.),
Los principios Latinoamericanos de derecho de los contratos (Madrid 2017). The argument in
favour of the inclusion of causa is presented in that volume by de la Maza / V ‌ idal, El Conteni-
do: Una primera aproximación, 27–75, 33 ff.; an English version is presented by Iñigo de la
Maza, The Notion of Contract and its Essential Elements in the Principles of Latin American
Contract Law, in: Momberg / V ‌ ogenauer, loc. cit. 163–177, 174 f.
14
Bernhard Windscheid: “Zur Thüre hinausgeworfen, kommt sie zum Fenster wieder
herein”; Die Voraussetzung, AcP 78 (1892) 161–202, 197 = Gesammelte Reden und Abhand-
lungen, ed. by Paul Oertmann (Leipzig 1904) 375–409, 406.
15
On the Voraussetzungslehre, see my contributions on causa in 19th century Germany
(Gregor Albers, Die causa vom Code Civil zum BGB. Zuwendungen tragen statt Verpflichtun-
gen begründen, in this volume, 263–321, 293 f. note 157) and on unexpected circumstances
under German law (Gregor Albers, Der Einfluss unerwarteter Ereignisse auf den Vertrag nach
deutschem Recht, in this volume, 573–635, 575–582) as well as the article by Horst Ehmann,
Zu den Arten der Rechtsgründe von Leistungen und Leistungs­versprechen. Von der causa-Lehre
zur Zwecklehre, in this volume, 755–869, 762–764, 769–772.
16
François Pillet: “si la cause est sortie côté jardin, elle est rentrée côté cour !”, cited by
Thomas Genicon, L’avenir de la cause en droit français des contrats, in this volume, 715–731,
717.
4 Gregor Albers

The idea that cause may persist has been nourished by the reformers them-
selves. Modernization, not revolution had been the proclaimed aim of 2016’s
ordonnance. The wording of the code should once again specifically express the
rules which the courts actually followed, making the law more transparent and
judgments more predictable. At the same time, reformers claimed that the courts
would still be able to obtain the practical results once grounded on cause.17 That’s
why, in an attempt to appease, the rapport describes the relinquishment of cause
as being merely formal, dubbing it “abandon formel de la notion de la cause”.18
Such a formal abolition seems to be mostly symbolic in nature; and it is rather
unclear how a practice deemed unpredictable is supposed to become more pre-
dictable while at the same time remaining unchanged.19 Does that mean that the
reform is no more than an attempt to deceive the eye, a means to preserve the
status quo?20 From a practical point of view, it seems rather probable that the
policies associated with the notion of cause are even strengthened by the formal
abolition of that notion: What used to be an open principle whose invocation was
debated in individual cases has been replaced by a set of articles distilled from
that caselaw (but sometimes based on a single court decision). As those articles
establish abstract rules, judges can be expected to apply them rather broadly,
extending them to cases they would have decided differently had they only re-
garded the old principle and the case law.21 In order to provide a coherent expla-
nation of the new articles and the decisions deduced from their wording, juris-
prudence might want to stick with the notion of cause, enriching its meaning to
cover the new fields of application.

II. Why? Fundamental problems

The resilience of causa bears witness of its connection with fundamental problems
of contract law. On the eve of the reform in France, cause was mostly viewed as
a stumbling block for a liberal approach to contract law, a restriction of the par-
ties’ autonomy, a tool for public control and regulation of private agreements. In
2012, Denis Mazeaud had described the controversy as follows: “From a per-
17
See the rapport (n. 10) under “Objectifs de la réforme” on page 3 and under chapter II,
section II (“La validité du contrat”) on page 8.
18
See the rapport (n. 10) under “Objectifs de la réforme” on page 3, second paragraph.
19
For an analysis of the reform as a means of communication Gaël Chantepie / ‌Nicolas
Dissaux, Le nouveau discours contractuel. Rapport introductif, Revue des Contrats 2016,
572–580, in particular 576 f. They perceive a fundamental conflict between modernization and
legal certainty: “à bien réfléchir, les deux objectifs sont résolument contradictoires” (575).
20
One is reminded of Tancredi’s motto: “If we wish everything to stay as it is, it is neces-
sary that everything changes” (“Se vogliamo che tutto rimanga come è, bisogna che tutto
cambi”). See also Chantepie / D ‌ issaux (n. 19): “Les éléments du discours changent, sans en
affecter le contenu. Il fallait ainsi que tout change, pour que rien ne change” (577).
21
For an extensive discussion, see the article by Thomas Genicon, L’avenir (n. 16).
 Why Cause of Contract again, and how? 5

spective of legal politics […] the adepts of contractual liberalism face the others,
bearers of the grand French tradition or partisans of a more moral vision of con­
tract law”.22 This interpretation is supported by the parallel case of the Netherlands,
where the abolition of oorzak has been driven by liberal intentions.23
This way of looking at causa seems quite natural to a German lawyer who has
been taught that all agreements intended to be legally binding should be effective
as contracts, if they are not nullified by some specific rule. Conformity with law
and morality, for example, is not considered an essential element of contract in
German law, although illegality and to an extent also immorality are reasons for
a contract’s invalidity.24 What seems to be only a matter of perspective might
actually account for a laissez-faire-attitude of German jurists and courts.25 The
new art. 1128 n. 3 accommodates the German position insofar as, in lieu of the
cause licite, it requires no more than un contenu licite e certain, a legitimate and
determinable content. Whereas cause invited interpreters to search for an exter-
nal justification of contract, the reference to its content isolates the contract,
urging it to stand alone and speak for itself. At the same time, the rules on il­legality
give a prime example how policies connected to cause have survived its elimi-
nation: Prior to the reform, the courts had held that a contract is ineffective if only
one party pursued an illegal aim, even if the other party knew nothing about it.26
22
Denis Mazeaud, Avant-propos, to: Henri Capitant, De la Cause des Obligations (Contrats,
Engagements unilatéraux, Legs), Réimpression de l’édition de 1927 (Paris 2012) i-iv, ii: “Dans
une perspective de politique juridique, d’une part, s’opposent les adeptes du libéralisme
contractuel et les autres, tenants de la grande tradition franςaise ou partisane d’une vision plus
morale du droit des contrats. Les premiers considèrent que la protection des intérêts privés des
contractants est suffisamment assurée […] De même, dans la perspective de la protection de
l’intérêt général contre les contrats contraires à l’ordre public et aux bonnes mœrs, la cause est
superflue […] Les autres considèrent qu’il est necessaire d’assurer la protection des contractants
contre les déséquilibres structurels qui peuvent affecter les contrats qu’ils ont conclus […] De
même grâce à sa souplesse, la cause demeure l’instrument le plus performant pour lutter conre
les contrats par la conclusion desquels les contractants poursuivaient un but immoral ou illicite”.
23
See Eduard Maurits Meijers, Ontwerp voor een Nieuw Burgerlijk Wetboek, Toelichting,
Derde Gedeelte (Boek 6), (’s-Gravenhage 1961) 749 ff., 752; on which see Ruland (n. 5) 107.
A liberal spirit is also present in Gandolfi (n. 9) 128 ff. – It seems that divergent motives have
come together in the French reform; see Dominique Fenouillet, Les valeurs morales, RDC
2016, 589–599 (“la liberté”: 591 ff., “la vertu”: 593 ff.); Frédéric Rouvière, Les valeurs écono-
miques de la réforme du droit des contrats, RDC 2016, 600–607.
24
Cf. §§ 134, 138 BGB.
25
Although the practical results do not always reflect that attitude; see the article by Ralf
Treibmann on the requirements of valid contracts in German law, Voraussetzungen der Wirk-
samkeit von Verträgen nach deutschem Recht, in this volume, 425–453, 448.
26
Cass. civ. 1ère 7.10.1998, n° 96-14.359; see Samuel Fulli-Lemaire, Le rôle passé de la
cause au stade de la formation du contrat, in this volume, 407–424, 423 f. At first glance,
this rule sounds strange to a German lawyer. It was already upheld by Georges Ripert, La règle
morale dans les obligations civiles (Paris 1925) 57 ff., 66, against Capitant, De la cause (n. 22)
n°4, 22 ff. Ripert does not hide his drift: “Pour briser les conventions immorales, il a fallu créer
le moyen technique nécessaire qui les atteindrait toutes” (57). The scandalized German lawyer
6 Gregor Albers

The rule is now enshrined in art. 1162 Code civil.27

If the removal of cause from the Code were indeed a victory of liberal contract
theory, this victory would not fit into one of the grand narratives of modern
history of private law, a tendency which in Germany is described as materialisa­
tion (Materialisierung) and which was first observed by Max Weber.28 In “Faktizität
und Geltung” (1992), Jürgen Habermas marks this development as follows: The
19th century’s “bourgeois formal law” (bürgerliches Formalrecht) assumes that
every person possesses the same amount of freedom. It tries to guarantee freedom
and equality simply by not interfering with human interactions. But the market
has failed manifoldly. The new welfare state model (sozialstaatliches Modell)
considers private actors as being determined by their unequal social positions.
In this model, the private law’s task is to intervene by regulation to establish free­

might be reassured when told that the immoral party would not have been allowed to rely on
that ineffectiveness.
27
Art. 1162 Code Civil 2016: “Le contrat ne peut déroger à l’ordre public ni par ses stipu-
lations, ni par son but, que ce dernier ait été connu ou non par toutes les parties”. Cf. also the
rapport (n. 10): “Par ailleurs est reprise la solution jurisprudentielle selon laquelle le contrat
est nul lorsque l’une des parties poursuit un but illicie, même si l’autre partie n’avait pas con­
naissance de ce but” (under subsection 3: “Le contenu du contrat”, p. 11).
28
On “tendencies favourable to the dilution of legal formalism” (“Tendenzen, welche eine
Auflösung des Rechtsformalismus begünstigen”) see Max Weber, Rechtssoziologie, § 8, in:
Werner Gephart / Siegfried Hermes (eds.), Max Weber-Gesamtausgabe, Bd. I/22-3 (Tubingen
2010) 620–632, in particular 623: “Nun aber entstehen mit dem Erwachen moderner Klassen-
probleme materiale Anforderungen an das Recht von seiten eines Teils der Rechtsinteressen­ten
(namentlich der Arbeiterschaft) einerseits, der Rechtsideologen andererseits, welche sich gerade
gegen diese Alleingeltung solcher nur geschäftssittlicher Maßstäbe richten und ein soziales
Recht auf der Grundlage pathetischer sittlicher Postulate (‚Gerechtigkeit‘, ‚Menschenwürde‘)
verlangen. Dies aber stellt den Formalismus des Rechts grundsätzlich in Frage. Denn die
Anwendung von Begriffen wie ‚Ausbeutung der Notlage‘ (im Wuchergesetz) oder die Versuche,
Verträge wegen Unverhältnismäßigkeit des Entgeltes als gegen die guten Sitten verstoßend
und daher nichtig zu behandeln, stehen grundsätzlich auf dem Boden von, rechtlich betrachtet,
antiformalen Normen, die nicht juristischen oder konventionellen oder traditionellen, sondern
rein ethischen Charakter haben, materiale Gerechtigkeit statt formaler Legalität beanspruchen”.
The following English translation unfortunately substitutes “material” with “social”: “New
demands for a ‘social law’ to be based upon such emotionally colored ethical postulates as
‘justice’ or ‘human dignity’, and directed against the very dominance of a mere business mo­
rality, have arisen with the emergence of the modern class problem. They are advocated not
only by labor and other interested groups but also by legal ideologists. By these demands legal
formalism itself has been challenged. Such a concept as economic duress, or the attempt to treat
as immoral, and thus as invalid, a contract because of a gross disproportion between promise
and consideration, are derived from norms which, from the legal standpoint, are entirely amor-
phous and which are neither juristic nor conventional nor traditional in character but ethical
and which claim as their legitimation substantive justice rather than formal legality.” It is taken
from Guenther Roth / ‌Claus Wittich (eds.), Economy and Society. An outline of interpretive so­
ciology (Berkeley / L‌ os Angeles / ‌London 1968) 886. – On the difference between formal free­
dom of contract and a material increase or decrease of liberty cf. also § 2 (425–428 and 453–455,
in the translation: 729–731).
 Why Cause of Contract again, and how? 7

dom in the first place.29 Novel contract law denies certain contractual agreements
their legal validity or modifies their content.30 In order to test the validity of a
contract, it is no longer enough to formally verify whether or not there is an agree­
ment; the test has to be expanded to examine that agreement’s material con­tent
against the background of the parties’ individual situation.
In Germany, the trend towards materialisation has characterised private law
from the first draft of the BGB up until today. To this materialisation, we owe the
legislative protection of employees and tenants. It explains why the law protects
relatives who offer themselves as guarantors despite having no personal assets.31
Materialisation’s newer manifestations include the minimum wage32 and the so-
called “rent brake” (Mietpreisbremse), which prohibits rental prices higher than
ten per cent above the average rent in areas with a strained residential situation.33
Materialisation is particularly present in the law passed by the European Union.
The Commission’s tendency to devise contract law as ius cogens34 could even in­
duce the idea that, by default, it distrusted all contracts concluded by consumers.
Materialisation describes private law as increasingly becoming the subject of
political design. Once material justice has been placed alongside formal justice
of exchange, private law quickly becomes an instrument for achieving distribu-
tive justice and promoting other objectives of the state or political interests.
If one drives materialisation to the extreme, the fact that the parties have
consented on their contractual terms is no more than an indication that the contract

29
Jürgen Habermas, Between Facts and Norms. Contributions to a Discourse Theory of
Law and Democracy, translated by William Rehg (Cambridge, MA 1998) 392–409. Habermas
does see the problem of “welfare-state paternalism”: “But with such overwhelming provisions,
the welfare state obviously runs the risk of impairing individual autonomy, precisely the autono­
my it is supposed to promote by providing the factual preconditions for the equal opportunity
to exercise negative freedoms” (407). He reassures the reader by pointing out the “political
autonomy” enjoyed by citizens of a democracy: “These persons are autonomous, however,
only insofar as they can at the same time understand themselves as authors of the law to which
they are subject as addressees” (408). For the German original, see Jürgen Habermas, Faktizität
und Geltung. Beiträge zur Diskurstheorie des Rechts und des demokratischen Rechtsstaats (5th
ed., Frankfurt am Main 2014) 477–493, in particular 490 ff.
30
On Materialisierung des Vertragsrechts more recently Claus-Wilhelm Canaris, Wand-
lungen des Schuldvertragsrechts – Tendenzen zu seiner “Materialisierung”, AcP 200 (2000)
273–364; Marietta Auer, Materialisierung, Flexibilisierung, Richterfreiheit. Generalklauseln
im Spiegel der Antinomien des Privatrechtsdenkens (Tubingen 2005) 22 ff.; Günter Hager,
Strukturen des Privatrechts in Europa. Eine rechtsvergleichende Studie (Tubingen 2012) 13 ff.;
Stefan Arnold, Vertrag und Verteilung (Tubingen 2014) 226–261.
31
On these cases, see Treibmann, Voraussetzungen (n. 25) 450 f.
32
Gesetz zur Regelung eines allgemeinen Mindestlohns vom 11.8.2014, BGBl. I 1348.
33
Gesetz zur Dämpfung des Mietanstiegs auf angespannten Wohnungsmärkten und zur
Stärkung des Bestellerprinzips bei der Wohnungsvermittlung vom 21.4.2015, BGBl. I 610.
34
See the criticism by Gerhard Wagner, Zwingendes Vertragsrecht, in: Horst Eidenmüller /
Florian Faust / H
‌ ans Christoph Grigoleit / N
‌ ils Jansen / G
‌ erhard Wagner / R
‌ einhard Zimmermann
(eds.), Revision des Verbraucher-acquis (Tubingen 2011) 1–52.
8 Gregor Albers

contains provisions which are societally desirable and should thus be enforced.
The consequent execution of this idea originates from Walter Schmidt-Rimpler
and dates not without reason from 1941; it was commissioned by the national
socialist Academy for German Law (Akademie für Deutsches Recht).35 At the
same time, causa was put into service for the materialisation of contract law in
Italy. When the Ministro Guardasigilli presented the draft for a new Codice
civile in 1942, its explanatory memorandum construed causa as a contract’s
“economic-social function” (funzione economico-sociale). It argued that the
parties’ private autonomy should only be preserved if their contract’s purpose
was worthy of social acceptance. Thus, causa was considered a control mechanism
essential for a fascist code.36
Even though the standards against which contracts are evaluated may have
changed, the trend of materialisation remains. Nowadays, materialisation is driven
primarily by economic analysis of law, which reduces the legal order as a whole,
and thus all subjective rights, to factors of aggregated utility.
Due to this overall trend, it is rather unlikely that the retreat of cause should
really turn out to be a triumph of private autonomy and liberalism. And indeed,
the opposition of causa and individual autonomy can be contested. When causa
is defined as the aim pursued by the parties to an agreement, having regard for
causa means no more than respecting their intentions. A German doctrine of
causa built on this position presents itself as a stronghold of autonomy against

35
Walter Schmidt-Rimpler, Grundfragen einer Erneuerung des Privatrechts, AcP 147 (1941)
130–197. The author deprived contract law of its old basis, but essentially, without change,
rebuilt it on new grounds. Thus, he defended it in terms of content against other National So-
cialist reform efforts. Schmidt-Rimpler’s theses also received attention after the war; he repeat-
ed them in Festschrift Ludwig Raiser (Tubingen 1974) 3–26.
36
Relazione alla Maestà del Re Imperatore del Ministro Guardasigilli (Grandi) presentata
all’udienza del 16 marzo 1942-XX per l’approvazione del testo del “Codice Civile”, n. 613:
“Non ostante gli equivoci e le critiche a cui il requisito della causa ha dato luogo, si è stimato
necessario conservarlo e anzi conferirgli massima efficienza, non solo e non tanto in omaggio
alla secolare tradizione del nostro diritto commune […] quanto, e sopratutto, perchè un codice
fascista, ispirato alle esigene della solidarietà, non può ignorare la nozione della causa senza
trascurare quello che deve essere il contenuto socialmente utile del contratto. Bisogna infatti
tener fermo […] che la causa richiesta dal diritto non è lo scopo soggiettivo, qualunque esso
sia, perseguito dal contraente nel caso concreto […] ma è la funzione economico-sociale che
il diritto riconosce rilevante ai suoi fini e che sola giustifica la tutela dell’autonomia privata.
Funzione pertanto che deve essere non soltanto conforme ai preceti di legge, all’ordine pubbli­
co e al buon costume, ma anche […] rispondente alla necessità che il fine intrinseco del con-
tratto sia socialmente apprezzabile e come tale meritevole della tutela giuridica” (in: Codice
Civile, Testo e Relazione Ministeriale, Roma 1943-XXI, 9–284, 132). The interpretation of
causa as “funzione economico-sociale” has been developed by Emilio Betti; see Teoria ­generale
del negozio giuridico, Seconda ristampa della seconda edizione (Turin 1955) 51 ff., 171 ff. (first
edition was 1943). See the article by Andrea Maria Garofalo on the progression from the French
Code civil to the Italian Code from 1942 (Itinerari della causa dal Code civil del 1804 al Codice
civile del 1942, in this volume, 201–245).
 Why Cause of Contract again, and how? 9

certain “objective” (objektive) theories, denouncing them as servants of collective

interests.37 Causa can provide the battlefield for the conflict between more libe­
ral and more collective theories of contract law. But it doesn’t need to be all about
that controversy.
Causa can actually channel most of what any contract theory does. The Cana­
dian Stephen Smith, author of the only textbook on the matter, defines contract theo­
ries as “interpretations of contract law”. Smith demands that a comprehensive theo­
ry explain how obligations arise out of contract and why the law enforces them.38
As the first modern examination of the normative foundation of contract, one
usually cites39 an essay by Fuller and Perdue from 1936.40 The authors question
why the damages awarded to a promisee are calculated to compensate her ex-
pectation interest. Respecting her expectations, the law confers upon the creditor
an advantage which she, according to Fuller and Perdue, has not had before. It
does not only compensate losses but exercises distributive justice.41 They argue
that the obligation to reimburse the creditor her expectation interest can at best
be justified indirectly: By sparing her from having to prove actual losses from
reliance on the contract, it is nevertheless her reliance interest which is p­ rotected.
Furthermore, the sanctity of contracts is encouraged by way of deterrence.42 By
qualifying the expectation interest as overcompensation, the authors implicitly
reject that the contract itself has the power to assign the future performance to
the creditor’s assets.
By explaining the obligatory effect of the contract with the other party’s reli-
ance, Fuller and Perdue establish a “reliance theory” in the sense of Smith. In
recent decades, however, attempts have reappeared to found the effects of contract
on the parties’ will: Like the medieval canon lawyers, Charles Fried draws upon
the moral commitment of the promise and has thus, since 1981, been the most
prominent advocate of a “promissory theory”.43 One can trace all the way back
37
See Ehmann, Rechtsgründe (n. 15) (dissenting in particular with the doctrines of Erfül-
lung durch reale Leistungsbewirkung and objektiver Rechtsgrund).
38
Stephen A. Smith, Contract Theory (Oxford 2004) 5. – For German contract theory of
today, see on the one hand, Florian Rödl, Gerechtigkeit unter freien Gleichen. Eine normative
Rekonstruktion von Delikt, Eigentum und Vertrag (Baden Baden 2015) in particular 267–361
(in the spirit of Ernest Weinrib); on the other hand, Bertram Lomfeld, Die Gründe des Vertra­ges.
Eine Diskurstheorie der Vertragsrechte (Tubingen 2015) (in the spirit of Jürgen Habermas).
39
As articulated by Peter Benson, Introduction, in: Peter Benson (ed.), The Theory of Con­
tract Law. New Essays (Cambridge 2001) 1–18, 1 ff. See also Patrick S. Atiyah, Fuller and the
Theory of Contract, in: Essays on Contract (Oxford 1986) 73–92 (originally published in the
Duke Law Journal 1983).
40
L. L. Fuller / ‌William R. Perdue, Jr., The Reliance Interest in Contract Damage, Yale L. J.
46 (1936–1937) 52–96 and 373–420. The article has also become famous for the distinction
of “reliance interests”, “expectation interests” and “restitution interests”.
41
Ibid., 53.
42
Ibid., 57.
43
Charles Fried, Contract as Promise. A Theory of Contractual Obligation (Cambridge,
MA 1981), and Charles Fried, The Ambitions of Contract as Promise, in: Gregory Klass / G ‌ eorge
10 Gregor Albers

to at least Hugo Grotius the “transfer theories” which interpret contract as a trans­
fer of rights; a position recently defended by Peter Benson.44
Because voluntarist interpretations of contracts centre upon the individual and
their intentions, they have a tendency to be of a liberal character. However, criti­
cism of these theories is not necessarily directed against their basic political trend;
above all, it does not have to be motivated by a desire for more regulation. Sub-
stituting voluntarism with a more comprehensive approach does not automati-
cally imply abandoning the individualist point of view in favour of a collective
perspective. The question is rather whether the mechanisms of contract law can
really be modelled as effects of the parties’ will.
Especially Patrick Atiyah argues (in his 1978 essay “Contracts, Promises and
the Law of Obligations”) that the will is not the appropriate criterion for the
existence of a contract. He suspects that the legal mind works the opposite way:
One can assume the existence of a will where one has already decided to find a
contractual obligation.45 Atiyah deems it arbitrary to interpret the act of boarding
a bus as a promise to pay the fare. If that were right, according to Atiyah, one
might as well say that partaking in road traffic entails a promise to adhere to the
traffic rules.46 This approach would allow all traffic accidents to be dealt with
through contract law. According to Atiyah, it would be more reasonable to do away
with contracts and construe liabilities based on reliance induced in others and on
the reception of goods and services.47 An explicit contractual promise could at
most serve as evidence of those obligations.48

Letsas / ‌Prince Saprai (eds.), Philosophical Foundations of Contract Law (Oxford 2014) 17–41.
This volume contains also important criticism, see Joseph Raz, Is There a Reason to Keep a
Promise?, 58–77, Liam Murphy, The Practice of Promise and Contract, 151–170, and Aditi
Bagchi, Distributive Justice and Contract, 193–211.
44
Peter Benson, Justice in Transactions. A Theory of Contract Law (Cambridge MA / London
‌­
2019), on which cf. ERCL 2021, 127–283.
45
Patrick S. Atiyah, Contracts, Promises and the Law of Obligations, in: Essays on Contract,
Oxford 1986, 10–56, 24 (originally in Law Quart. Rev. 1978).
46
Ibid., 19: “Is it meaningful or useful to claim that a person who boards a bus is promis-
ing to pay his fare? If so, would it not be just as meaningful to say that when he descends from
the bus and crosses the road he promises to cross with all due care for the safety of other road
users?”.
47
Apart from Fuller and Perdue, one can find the same focus on reliance with Grant ­Gilmore,
The death of contract, (Columbus [Ohio] 1974) 88: “We are fast approaching the point where,
to prevent unjust enrichment, any benefit received by a defendant must be paid for unless it
was clearly meant as a gift; where any detriment reasonably incurred by a plaintiff in reliance
on a defendants assurances must be recompensed. When that point is reached, there is really
no longer any viable distinction between liability in contract and liability in tort.” On Gilmore,
one should take note of the criticism by James Gordley, 89 Harv. L. Rev. (1975–1976) 452–467.
– For similar arguments by contract scepticists in 19th century Germany, see my article, Albers,
Die causa vom Code Civil zum BGB (n. 15) 285, 312 f. with note 263.
48
Atiyah, Contracts and Promises (n. 45) 25.
 Why Cause of Contract again, and how? 11

In his 1991 book on the philosophical origins of modern contract theory, James
Gordley identifies several shortcomings in deriving a contract’s binding nature
from the parties’ will. Based on will, it could not be explained why gratuitous
promises are treated differently from contracts of exchange. Also, a reduction of
contracts down to will is incompatible with the fact that typical rules – concep-
tualised as implied terms in common law and dispositive law in continental sys­
tems – apply for different types of contracts.49 Finally, the parties’ will cannot
justify the well-recognised necessity to void certain contracts because of their
unfairness.50 The reason for these deficiencies, Gordley finds, is that the volun-
tarist contract theory has severed its roots, which lie in Aristotelian philosophy
and scholasticism. The doctrine of causa, for instance, was lost in the process.51
Possibly, causa could play a role in determining if an agreement is legally rele­
vant and what content it has. Particularly French and German law seek answers
to these questions predominantly in the interpretation of the individual parties’
will, which is then complemented by dispositive law. In English law, over the last
hundred years, the requirement of an intention to create legal relations (“Rechts-
bindungswille”) has partly assumed consideration’s function to distinguish the
legally binding from the merely socially binding.52 In the absence of a doctrine
of contract types, the content of a contract has always been determined to a great
extent by the individual agreement. Italian law, on the other hand, ad­dresses
precisely by means of causa – within the framework of the “construction” of the
contract – a contract’s actual purpose in its specific social situation.53
The objective relevance of the parties’ personal interests, directly and openly
deliberated by Italian doctrine, does influence legal decisions in other jurisdictions
as well, but in a more indirect and maybe sometimes less honest way: only as
part of the agreement’s interpretation, i. e. under the guise of identifying the
parties’ actual will. That is what happens when we imply terms to a contract, or
even go so far as to imply an entire offer or acceptance.

49
On contract types under common law, see Geoffrey Samuel, Classification of contracts:
A view from a common lawyer, in: Francisco Javier Andrés Santos / C ‌ hristian Baldus / H
‌ elge
Dedek (ed.), Vertragstypen in Europa. Historische Entwicklung und europäische Perspektiven
(Munich 2011) 117–152. Even contract theory has rediscovered types: Hanoch Dagan / ‌Michael
Heller, The Choice Theory of Contracts (Cambridge 2017).
50
James Gordley, The Philosophical Origins of Modern Contract Doctrine (Oxford 1991)
8, 233 ff. Cf. also Gordley, Contract Law in the Aristotelian Tradition, in: Benson, Theory of
Contract Law (n. 39) 265–334.
51
On causa see Gordley, Philosophical Origins (n. 50) 49 ff., 77 ff., 164 ff.
52
See the contributions in this volume by Häcker, Causa und consideration (n. 12) 331 f.
and by Kristin Boosfeld on requirements for valid contracts under English law (Äquivalente
der causa beim Vertragsschluss. Ein Blick ins englische Recht, 499–514, 503–505).
53
See the contributions in this volume by Francesca Bartolini on causa from the 1942 Code
until today (La causa del contratto dal Codice civile del 1942 ai giorni nostri, 247–261, 257–­
260) and by Andrea Maria Garofalo / ‌Francesco Paolo Patti on the requirements of valid con­
tracts under Italian law (La causa tra fisiologia e patologia del contratto, 455–498, 457–484).
12 Gregor Albers

Causa recalls the fact that the explicit agreement of the parties does not exhaust
a contract’s problems. As an additional element besides agreement, it has the
potential to justify the legal effect of the whole contract. This is echoed in the
word itself, which means purpose as well as cause. For centuries, continental
law­yers have been endeavouring to give this word a meaning. Causa thus com-
prises many answers to questions that currently occupy a global academic discourse
on contract theory. Whatever the statutes and codes say today, it would seem
frivolous not to take the opportunity to encourage academic stimulation between
these two discourses in the future.

III. How? The chosen approach

How does one study a phenomenon like causa? We suggest combining a doctrin­
al and a practical approach, looking at the development of the notion causa and
its various national derivatives as well as at the practical problems addressed by
those notions.
Today, many legal historians – as well as comparative lawyers – favour ap-
proaches that focus on practical consequences, social context or the cultural
value of law.54 Such approaches risk paying less attention to the doctrines which
make up the content of legal thinking. However, for its participants, legal discourse
is not without meaning. This meaning is expressed through thought patterns and
concepts which need to be studied in order to understand a legal system as it is.
Particular ways of reasoning create path dependencies that obstruct any attempt
at international harmonisation based on a purely functional comparison55 of dif­
ferent solutions. This is why we chose the history of causa contractus as a con­
ceptual framework to harbour our functionalist comparisons. These comparisons,
on the one hand, examine the requirements legal systems impose in order to ac­
knowledge a valid contract. On the other hand, we compare the effects of unex-
pected circumstances on the contractual relationship.
The comparison extends from classical Roman law to French, German, Italian
and English law. We would have wished to cover other systems. It is, further, not
only other European countries and the American continent that come to mind. But
we had to accept the limits of our material, temporal and mental capacities. We

54
For legal history, I will just mention two recent monographs that explore colourful new
approaches on ground which used to be covered differently: Anat Rosenberg, Liberalizing
Contracts. Nineteenth Century Promises Through Literature, Law and History (Oxford / New
York 2018), and Angela Fernandez, Pierson v. Post, The Hunt for the Fox. Law and Profes-
sionalization in American Legal Culture (Cambridge 2018). For comparative law, see the 20
(!) articles on different approaches in Reimann / Z‌ immermann, Comparative Law (n. 11); or the
discussion by Mathias Siems, Comparative Law (2nd ed., Cambridge 2018).
55
On “functionality” as a core concept, see Zweigert / ‌Kötz / ‌Weir, Comparative Law (n. 4)
34–40.
 Why Cause of Contract again, and how? 13

believe that Villa Vigoni’s trilateral conference has allowed for a reasonable ap­
proach to the topic, as the program permitted us to bring together scholars from
Italy, Germany and France, and even to enrich that mixture with an English
­element.
In the partial eye of an insider as to one of those legal systems, it seems pos-
sible to justify this selection. It was la grande nation which, in its 1804 Code
civil, combined Roman tradition with the new ideals of a civil society. The Code’s
linguistic and internal quality allowed it to become an export hit in the Napo­
leonic expansion. In the course of the 19th century, the (German) Historical
School took the lead in European jurisprudence by, on the one hand, working on
historical sources to increase the material on Roman “Common law” (ius com-
mune, Gemeines Recht), and on the other hand, updating that law and interpret-
ing it systematically. The fruit of this work was the Bürgerliches Gesetzbuch, in
force since 1900, along with its dogmatics on which German lawyers still draw
today. Italy deserves particular consideration as well, for it is a mediator between
the worlds. While the Codice civile of 1865 was an adaptation of the French
code, Italian scholarship later found inspiration in methods and results of German
jurisprudence. The Codice civile of 1942, although also influenced by fascism,
is representative of the productive confrontation with these two neighbours. It
anticipated some of the solutions that have been introduced into the French Code
civil with the reform in 2016. As a matter of course, the continental laws must
be contrasted with English law. The latter’s main peculiarity is the role of the
courts: They carry the authority of a tradition of precedents dating back to the
Middle Ages, which they must continue to update and develop only with the
utmost caution. Judges have never been considered the protagonists of law on
the continent, where the function now taken over by legislators used to be fulfilled
by legal scholars.
By studying the Roman roots as well as the French, German, Italian and Eng-
lish branches of the western legal tradition, one can explore a reasonably strong
grid that might offer a good enough a basis to bear its story. We believe that this
holds true for causa, the development of which – from Rome through medieval
and early modern legal scholarship to the discussions under the different natio­nal
legal systems – is recounted in the first part of the book entitled “History of a
Notion”.56 The French codification is followed by German rejection and Italian
adaption, while under English common law, causa is reflected by the doctrine of
consideration.
The second part of the book takes a comparative point of view and examines
how certain problems are addressed in different legal systems. It contains two
sections. The first section57 scrutinises the conditions of validity at the formation
of a contract. It focusses mainly on the following questions: How can legal ob-
56
See my Introduction: Gregor Albers, History of a Notion, in this volume, 19–36.
57
See the introduction by Dorothée Perrouin-Verbe, Causa and the Requirements of Valid
Contracts, in this volume, 373–383.
14 Gregor Albers

ligations be distinguished from merely socially binding promises? Is a contract

ineffective because it violates legal or moral norms and principles? Can a party
be protected from an unfair contract or from a contract that cannot achieve what
the party had hoped it might achieve? In one legal system or another, each of those
issues is connected to the doctrine of causa, and we search to point out this doc­
trine’s function by comparing it to the different approaches used by other systems
to answer the same questions and achieve similar results. We believe that this is
the best way to further European understanding on private law: We need to explore
the differences and similarities not only of the practical results obtained in the
different legal systems, but also of the modes of reasoning applied to reach these
results, always being aware of the roots those legal tools have in our different,
yet ultimately common legal traditions.
The second section58 of the comparative part might surprise some readers. It
deals with the impact of unexpected circumstances on the contract. This might
seem to have nothing to do with the problems usually connected to the notions
of causa or consideration. But we believe that, on the contrary, the requirements
for the validity of a contract must be considered together with those figures which
decide on the legal impact of unexpected circumstances. This is because the task
of private law, both in regard to the execution of existing contractual relations
as well as to their creation, is to appreciate the agreement between the parties in
the light of factual circumstances and to supplement it with objective law, there-
by necessarily limiting it. However, this is not to say that an event must always
have the same effect on the contract, whether it occurs before its conclusion or
afterwards. To the contrary, the risks of initial and subsequent impediments to
performance will often be distributed differently. For example, debtors might
guarantee their initial capacity to perform but not their ability to do so later on,
when randomly arising obstacles might inhibit their performance.59 The institute
of causa can assume the function of coordinating the parties’ agreement with the
specific facts of the case and with objective law.
The relationship between the initial validity of a contract and its continuing
effectiveness has recently been postulated by the Argentinian Civil and Commer-
cial Code of 2014. Its article 1013 requires the persistence of contract’s causa

58
See the introduction by Francesco Paolo Patti, Causa and Unexpected Circumstances,
in this ­volume, 517–530.
59
On that principle, see Martin Schermaier, Impossibilium nulla obligatio. Vorverständnis,
Begriff und Gegenstand der Unmöglichkeit der Leistung im römischen Recht, AUPA 51 (2006)
242–268, 254–259; and Debet homo facere quod in se est? Vertragstreue und nachträgliche
Leistungserschwerung zwischen Recht und Moral, in: Byoung Jo Choe (ed.), Law, Peace, and
Justice: A Historical Survey (Seoul 2007) 191–237. – According to the original German BGB,
a debtor was assumed to guarantee that he could perform at the moment of contract formation,
but not that he would overcome obstacles which might arise later; see my article on unexpect-
ed circumstances (Gregor Albers, Der Einfluss unerwarteter Ereignisse auf den Vertrag nach
deutschem Recht, in this volume, 573–635), 591–595, in particular n. 94.
 Why Cause of Contract again, and how? 15

from its formation to its execution.60 That claim is not without precedence in the
different legal systems. In particular, the law of restitution for unjust enrichment
is no stranger to the fact that the basis an enrichment needs in order to be just
can be absent from the beginning or go amiss later. Initial and subsequent re-
quirements are thus connected not solely by the Roman condictiones61 or Bern-
hard Windscheid’s doctrine of presupposition (Voraussetzungslehre).62 A similar
connection has also been suggested for French contract law,63 and it might as
well be at the heart of the English doctrine of failure of consideration.64 We are
confident that the articles presented in this volume will justify the inclusion of
the problem of unexpected circumstances under the umbrella of causa contrac-
tus even in the eyes of those who at first glance might have considered it inap-
propriate.
The final part of the book65 depicts the future of causa in European contract
law. It collects essays by four eminent scholars from the French, Italian, German
and English legal systems who give their view on the potential the notion still
has today.

IV. A prospect
Will causa indeed have a future in the European legal systems? As a theme for
this introduction, I have quoted two lines from the song “As Time Goes By” by

60
Art. 1013 Código Civil y Comercial argentino (2014): “Necesidad. La causa debe e­ xistir
en la formación del contrato y durante su celebración y subsistir durante su ejecución. La
falta de causa da lugar, según los casos, a la nulidad, adecuación o extinción del contrato.” – I
am grateful to Manuel Grasso for this indication.
61
African D. 12,7,4 (8 quaestionum): Nihil refert, utrumne ab initio sine causa quid datum
sit an causa, propter quam datum sit, secuta non sit, or in English: “There is no material dif-
ference between the case in which a giving has no basis from the beginning and that in which
the basis upon which the giving happens fails to endure”; translated by Alan Watson, The Digest
of Justinian (Philadelphia 1985).
62
See supra n. 15.
63
See Jean Domat, Les Loix Civiles dans leur Ordre Naturel, première partie, livre premier,
titre i, section vi, § XIII: “Dans les conventions où quelqu’un se trouve obligé sans aucune
cause, l’obligation est nulle. Et il en est de même si la cause vient à cesser” (Paris 1735) 31;
Capitant, De la cause (n. 22) 28: “En effet, l’obligation ne peut vivre qu’autant qu’elle reste
appuyée sur sa cause”, 28–31, 259–358; Arnaud Cermolacce, Cause et exécution du contrat
(Aix-en-Provence 2001); now the article by Dorothée Perrouin-Verbe on unexpected circum­
stances under French law (L’évènement imprévu et le bouleversement de l’équilibre contractuel
en droit français, in this volume, 553–571).
64
On failure of consideration, see in this volume Häcker, Causa und consideration (n. 12)
353–368 and Francesco Mezzanotte on unexpected circumstances under English law (Lo scopo
contrattuale nella doctrine of frustration, 675–702).
65
See the introduction by Albers / P
‌ atti / ‌Perrouin-Verbe, The Future of causa, 705–713.
16 Gregor Albers

Herman Hupfeld that gained worldwide fame as delivered by Dooley Wilson

(“Sam”) in the 1942 movie “Casablanca”. Let’s have the whole verse:
You must remember this
A kiss is still a kiss66
A sigh is just a sigh
The fundamental things apply
As time goes by.

It is not only the big questions of contract law that will continue to bother us.
There seems to be only a limited choice of ways to tackle these issues, and at
least for us as representatives of a European legal tradition, they all seem to lead
back to the discussions on causa. So I do believe that, as time goes by, cause will
still be cause. Or, to express myself better, please allow me to recite a line by the
German national poet:
Was einem angehört, wird man nicht los, und wenn man es wegwürfe
(“We cannot get rid of what belongs to us, even if we were to throw it away”).67

66
This is the original line. In the movie, Dooley Wilson sings: “just a kiss”, which I do not
adapt, as it fails to underline the lasting importance of causa.
67
Johann Wolfgang von Goethe, Wilhelm Meisters Wanderjahre, in: Erich Trunz (ed.),
Goethes Werke. Hamburger Ausgabe in 14 Bänden (Hamburg 1948–1960) 463. The translation
is by Herbert Morgan Waidson, see Wilhelm Meister (London 2013) 831.
I. History of a Notion
Gregor Albers, History of a Notion

History of a Notion
History of a Notion
Gregor Albers
Gregor Albers
I. A guideline�������������������������������������������������������������������������� 19
II. The articles in context��������������������������������������������������������������� 19
1. Roman fragments����������������������������������������������������������������� 19
2. Scholarly designs����������������������������������������������������������������� 24
3. National structures��������������������������������������������������������������� 26
III. Mapping causa���������������������������������������������������������������������� 33
1. Definitions����������������������������������������������������������������������� 33
2. Functions������������������������������������������������������������������������� 35

I. A guideline
The story of causa contractus begins – as all such stories do – with Roman law.
In our sources, the term causa is employed frequently, often without any tech-
nical meaning. Since the Middle Ages, scholars have tried to make sense of Roman
contract law and describe it in terms of a coherent conceptual system based on
causa. The essential building blocks which they had to fit together were the
sources on causa conventionis, causa condictionis and causa stipulationis. As
the national laws affirmed themselves in contrast to pan-European legal scholar­
ship, divergent concepts of causa were consolidated as elements of the divergent
structures of contract law. This introduction traces the line of thought drawn by
the articles in this part of the book, concluding with an attempt to categorise the
different conceptions of causa contractus.

II. The articles in context

1. Roman fragments
In its perhaps most prominent appearance in the ancient sources, causa serves
as an escape route out of the strict boundaries of the Roman contractual system.
Roman law did not provide actions for non-performance of every agreement
(conventio), but only in case of certain typical contracts (such as sale, lease,
loan …). But Aristo, a jurist who lived between the first and the second century
AD, insisted that any agreement to exchange goods or services should give rise
20 Gregor Albers

to a claim for the expectation interest, provided that the claimant had already ful­
filled his part of the bargain: Because, while this was not a proper contract (con­
tractus), there was – said Aristo – a causa. We might call it causa conventionis
for the purpose of easier differentiation.1 We know about Aristo’s opinion because
it was quoted by Ulpian between the second and third century and thus made its
way into the Digest of Emperor Justinian.2
The famous passage is elaborated on by Tommaso dalla Massara in his article
on the origins of the notion of causa.3 Ever since the Glossators in Bologna,
causa as employed by Aristo has been said to point to the performance which
has already been rendered by the claimant. Continuing a slightly more recent line
of thought, dalla Massara rejects this interpretation.4 He points out that giving
something, under Roman law, could be the basis for a so-called “real” contract
that merely gave rise to an action for the return of such a thing and not to an ac­
tion for any counter-performance. Dalla Massara further argues that Aristo referred
to the Aristotelian notion of reciprocity – the synallagma, a concept already
applied by Labeo as a decisive element of contract.5 This reference supports the
hypothesis that Aristo might as well have taken up the notion of causa finalis.6

1
This is not a common denomination. I use causa conventionis in order to reserve causa
contractus as a general term for the tradition that feeds on the different causae of Roman law.
Moreover, a conventio did not become a contractus even if it had a causa. Although the effect
of causa conventionis is that there is an obligation, I avoid an expression like causa obliga-
tionis becausa causa is discussed here as an element of conventio.
2
Ulpian D. 2,14,7,2 (4 ad edictum): Sed et si in alium contractum res non transeat, subsit
tamen causa, eleganter Aristo Celso respondit esse obligationem. ut puta dedi tibi rem ut mihi
aliam dares, dedi ut aliquid facias: hoc συνάλλαγμα esse et hinc nasci civilem obligationem;
in English: “But even if the matter does not fall under the head of another contract and yet a
ground exists, Aristo in an apt reply to Celsus states that there is an obligation. Where, for
example, I gave a thing to you so that you may give another to me, or I gave so that you may
do something, this is, Aristo says, a synallagma and hence a civil obligation arises”, translated
by Alan Watson, The Digest of Justinian (Philadelphia 1985).
3
Tommaso dalla Massara, Die causa des Vertrages im Denken des Aristo: zu den Ursprün-
gen einer Idee, in this volume, 37–66.
4
On the positions of Glossators and Commentators, see below at n. 19 and 20.
5
Ulpian D. 50,16,19 (11 ad edictum): Labeo libro primo praetoris urbani definit, quod
quaedam ‘agantur’, quaedam ‘gerantur’, quaedam ‘contrahantur’: et actum quidem generale
verbum esse, sive verbis sive re quid agatur, ut in stipulatione vel numeratione: contractum
autem ultro citroque obligationem, quod Graeci συνάλλαγμα vocant, veluti emptionem vendi-
tionem, locationem conductionem, societatem: gestum rem significare sine verbis factam, or
in Watson’s translation (n. 2): “Labeo, in the first book of the Urban Praetor’s Edict, lays down
that some things ‘agantur’, some things ‘gerantur’, some things ‘contrahantur’; and indeed,
actum is a general word whether something is done verbally or executed in fact, as in a stipu-
lation or a computation. A contractum, however, is something which involves an obligation on
both sides, which the Greeks call synallagma, such as purchase or sale, hire or partnership;
gestum means something done not verbally”.
6
Dalla Massara, Die causa des Vertrages (n. 3) rejects the criticism by Martin ­Schermaier,
Kausalität oder Finalität? Überlegungen zur causa in Ulpian D. 2,14,7, in: Thomas ­Finkenauer /
 History of a Notion 21

According to dalla Massara, causa should hence rather be read as the intended
exchange which was the purpose of the agreement.
Taking up this connection between contract and exchange, Arnaud Paturet
makes a case for the thesis that the historical roots of contractual obligation are
tightly entangled with the idea of exchange. He reflects on socio-anthropological
archetypes of causa,7 combining reflections on Marcel Mauss8 with his own
reading of Titus Livius’ reports on vows taken by Roman generals to build shrines
or make sacrifices to deities in exchange for victory in battle.
However, what I have called causa conventionis – the additional element of a
convention that provides the basis for a claim in the case of so-called innominate
contracts – was just one of several technical meanings of causa. A performance ren­
dered sine causa – without cause – could be reclaimed with a condictio, on the
grounds of what today is called unjust enrichment. This absence of a justification
for the enrichment has later been called causa condictionis.9 Most importantly for
us, causa also appears in the context of stipulatio, the formal contract by which a
unilateral obligation could be established between two parties. As long as the ver­
bal formalities were fulfilled, the stipulation obliged the promisor under civil law,
regardless of why he might have decided to make such a promise.10 But this obli­
gation itself could be the object of a condictio if it enriched the creditor unjustly.
That is why the praetor granted an exception (exceptio doli) to the promisor if the
latter alleged that the stipulation was made without due cause or lost its cause later.11
Boudewijn Sirks (eds.), Interpretationes iuris antiqui. Dankesgabe für Shigeo Nishimura (Wies­
baden 2018), 293–310.
7
Arnaud Paturet, La cause contractuelle aux confins de l’anthropologie et du droit, in this
volume, 67–96.
8
Marcel Mauss, Essai sur le don. Forme et raison de l’échange dans les sociétés archaïques,
L’Année Sociologique 1923–1924, 30–186.
9
On condictio and unjustified enrichment in Roman law, see Reinhard Zimmermann, The
Law of Obligations. Roman Foundations of the Civilian Tradition (Oxford New York 1990)
834–873. For a more recent contribution on the question whether these claims had a common
basis, see Susanne Hähnchen, Die causa condictionis: Ein Beitrag zum klassischen römischen
Kondiktionenrecht (Berlin 2003).
10
On stipulatio, see Zimmermann, Law of Obligations (n. 9) 78–152. For some additional
thoughts, see my articles Zum Versprechen als Verpflichtungsgrund in der Spätantike: Urkunden,
Kirchenväter und der westgotische Gaius, ZRG RA 135 (2018) 334–363; Versprechen und
Ver­trag in Rechtsgeschichte und Rechtsvergleich, in: Gregor Albers / Joachim Harst / Katharina
Kaesling (eds.), Wortgebunden. Zur Verbindlichkeit von Versprechen in Recht und Literatur
(Frankfurt am Main 2021), 29–88.
11
Ulpian D. 44,4,2,3 (76 ad edictum): Circa primam speciem, quibus ex causis exceptio
haec locum habeat, haec sunt, quae tractari possunt. si quis sine causa ab aliquo fuerit stipu-
latus, deinde ex ea stipulatione experiatur, exceptio utique doli mali ei nocebit: licet enim eo
tempore, quo stipulabatur, nihil dolo malo admiserit, tamen dicendum est eum, cum litem con­
testatur, dolo facere, qui perseveret ex ea stipulatione petere: et si cum interponeretur, iustam
causam habuit, tamen nunc nullam idoneam causam habere videtur. proinde et si crediturus
pecuniam stipulatus est nec credidit et si certa fuit causa stipulationis, quae tamen aut non est
secuta aut finita est, dicendum erit nocere exceptionem, in Watson’s translation (n. 2): “With
22 Gregor Albers

To describe the use of causa in these sources, one might speak of causa stipula-
tionis.12
A certificate was often issued for the oral stipulation. The evidential value of
these documents increased steadily; and gradually, they became perceived as a
decisive element of the agreement. Practical problems arose mainly in the context
of loans. It was common for the loanee to promise the lender repayment by means
of a stipulation. Sometimes, certificates for this kind of stipulation were issued
before the loan was paid out. If, for some reason, the loan was not disbursed, a
stipulation demand was in the world that was, in its essence, unjustified. Accord-
ing to the understanding of “real” contracts, a loan claim had not even arisen yet.
In these cases, the exception applied was called exceptio pecuniae non numera-
tae (“the defence of money not paid”).13 In derogation from the general rules,
the creditor was burdened to prove that the loan had been paid out and that
therefore the stipulation was justified. Later, the onus of proof was reversed not
only in the case of stipulations which had obviously been made to secure a loan,
but also where the certificate did not state the reason for the stipulation (so-called
cautio indiscreta).14

regard to the first point, as to the cases in which this defense has application, the following are
the matters which can be discussed. If someone without good cause stipulated something from
another and then sues him in terms of that stipulation, the defense of fraud will surely bar him;
for even though he has committed no fraud at the time that he stipulated, nevertheless, it must
be said that he was acting fraudulently at the time of joinder of issue, if he perseveres in claim-
ing in terms of that stipulation, and also if he had a good cause when the stipulation was made,
but seems to have no proper cause now. Consequently, even if a person intending to give a loan
stipulated for the money and then did not give the loan, then, although there was a definite cause
for the stipulation but it has either not eventuated or been completed, it will have to be said that
the defense will avail”. On the reception of this text, see in this volume Martin Schermaier,
Die Rolle der causa bei der Überwindung des Typenzwangs durch die mittelalterlichen ­Juristen,
97–152, in particular 122–127, Gregor Albers, Die causa vom Code civil zum BGB. Zu-
wendungen tragen statt Verpflichtungen begründen, 263–321, 269 f. with n. 29.
12
See in particular Joseph Georg Wolff, Causa stipulationis (Cologne 1970); Andreas Wacke,
Causa stipulationis, TR 40 (1972) 231–261 and Elena Giannozzi, Le caractère contraignant des
contrats en droit romain classique, 385–405, 394–399.
13
This expression can be found in Ulpian D. 44,4,4,16 (76 ad edictum); the translation is
again Watson’s (n. 2). For sources and literature on the exceptio pecuniae non numeratae, see
Zimmermann, Law of Obligations (n. 9), 93 f.
14
See in particular Paulus D. 22,3,25,4 (3 quaestionum): […] sin autem cautio indebite
exposita esse dicatur et indiscrete loquitur, tunc eum, in quem cautio exposita est, compelli
debitum esse ostendere, quod in cautionem deduxit, nisi ipse specialiter qui cautionem exposuit
causas explanavit, pro quibus eandem conscripsit: tunc enim stare eum oportet suae confes-
sioni, nisi evidentissimis probationibus in scriptis habitis ostendere paratus sit sese haec in-
debite promississe; or in Watson’s translation (n. 2): “If, however, a deed is said to be execut-
ed for what is not owing and the cause is not stated in the deed, the creditor must show that the
debt in the deed is owing, unless the party who executed it specifically explains the cause for
his doing so. In that case, he must stand by his admission, unless he can show by very clear
proof in writing that he promised what was not owing”. On the reception of this text, see in
 History of a Notion 23

A particular kind of promises singled out in the Digest were those made to a
local community by one of their citizens, for example to finance a public ­building
or a festival. Such a promise was called a pollicitatio. It is famous because it was
apparently valid without need for an acceptance.15 Another aspect has received
less attention by modern scholarship: The promisor was obligated only if he had
promised for a proper reason (ob iustam causam) or if the works had already
be­gun.16 The pollicitatio had a iusta causa if it was made “in return for an office
already granted to him or to be granted” in the future, but also if the city was fac­
ing a crisis and the promisor altruistically pledged his support.17 What we might
call causa pollicitationis was discussed by medieval jurists as a specific case of
causa stipulationis.18
Today, the Roman sources on the consensual transfer of property rights and
on acquisitive proscription are framed in terms of causa as well: The requirements
of acquisition are addressed as causa traditionis and causa usucapionis.19 For
the later discussion on contract, this material is less relevant. It has a certain im­
pact insofar as one constructs the acquisition of property as being the effect of a
specific contract aiming at its transfer. Moreover, causa traditionis serves as a

this volume Schermaier, Die Rolle der causa (n. 11) 124 ff. (with respect to the medieval jurists)
and myself, Die causa vom Code civil zum BGB (n. 11) 270 n. 30, 287, 292 n. 153, 294 n. 157,
297 n. 175 (with respect to 19th century Ger­man scholarship).
15
For an overview of pollicitatio with a focus on its unilateral character see Albers, Ver-
sprechen und Vertrag (n. 10) 48 f.
16
Ulpian D. 50,12,1 (liber singularis de officio curatoris rei publicae): (§ 1) Non semper
autem obligari eum, qui pollicitus est, sciendum est. si quidem ob honorem promiserit decretum
sibi vel decernendum vel ob aliam iustam causam, tenebitur ex pollicitatione: sin vero sine
causa promiserit, non erit obligatus. et ita multis constitutionibus et veteribus et novis contine­
tur. (§ 2) Item si sine causa promiserit, coeperit tamen facere, obligatus est qui coepit, or in
Watson’s translation (n. 2): “But it must be realized that someone who has made an undertak-
ing is not always bound. If a man has promised something in return for an office already
granted to him or to be granted or for any other proper reason, he will be bound by his under-
taking; but if he has promised for no reason, he will not be bound. And this provision occurs
in many constitutiones both old and new. Likewise, if someone promised for no reason but
began to carry out his promise, he is bound”. Pollicitatio could also be translated as a promise
or an offer. The translation of honor as office is confirmed by Modestin D. 50,12,11 (9 pandec-
tarum): Si quis ob honorem vel sacerdotium pecuniam promiserit …; “If someone has promised
money on account of an office or priesthood […]”.
17
See Paulus D. 50,12,7 (1 de officio proconsulis): Ob casum, quem civitas passa est, si
quis promiserit se quid facturum: etsi non inchoaverit, omnimodo tenetur, ut divus Severus
Dioni rescripsit. In Watson’s words (n. 2): “If someone has promised to do something because
of a disaster which a community has suffered, even if he has not begun to do it, he is complete-
ly bound, as the deified Severus said in a rescript to Dio”.
18
See Schermaier, Die Rolle der causa (n. 11) 130 f.
19
We thus have covered the list by Theo Mayer-Maly, Fragmente zur Causa, in: Walter
Wilburg zum 70. Geburtstag (Graz 1975) 243–251, 245: “Das entwickelte Privatrecht der
Neuzeit hat vier Bedeutungsschwerpunkte der causa: die causa der Verträge, die iusta causa
traditionis, die causa als Ersitzungstitel, die causa des Kondiktionenrechts”.
24 Gregor Albers

parallel for causa contractus: Already Hugo Grotius, who held that one could
voluntarily create a unilateral obligation, supported his argument by pointing out
that property could be transferred at free will. An additional cause was required
neither for the obligation, nor for the transfer of property.20

2. Scholarly designs
How medieval jurists used the Roman material to construct a system and over-
come the limits of the Roman law of contract21 is the topic of the article by ­Martin
Schermaier.22 Schermaier highlights that Aristotle’s philosophy penetrated me-
dieval legal thought in two waves. The Glossators were only superficially acquaint­
ed with Metaphysic’s four causae by mediation of Boethius; whereas later jurists
relied on the comprehensive works of Thomas Aquinas. The influence of Aquinas
amplified a latent tendency to focus on human actions and to analyse them by
identifying their ends, thus favouring an understanding of causa in the sense of
causa finalis. Accordingly, the Glossators originally identified our causa conven­
tionis – which made innominate contracts actionable – with the performance by
the claimant.23 The Commentators, however, described causa in these cases as
the claimant’s expectation of the other party’s performance.24 When the expec-
tation was met, it vested what had before been no more than a naked pact (pac-
tum nudum).
As Schermaier underlines, the finalist approach fit even better to what we call
causa stipulationis, because unlike a synallagmatic agreement, a promise can be
construed as the intentional act of one single person. The medieval lawyers
struggled with the Roman sources that granted an exception against obligations
arising out of a stipulation made without due cause. We have seen above that in
cases of a cautio indiscreta – where a claimant produced documentary proof of
a promise and that proof did not reveal the reason why such promise had been
made – some texts required the claimant to provide further proof on that reason.
Although many scholars acknowledged the difference between invalidity de iure
civile and protection of the debtor by a praetorial remedy and were even attentive
20
Extensive discussion by Klaus Kowalski, Das Vertragsverständnis des Hugo Grotius (Köln
2022) 294 f., 342 f. This parallel was further exploited by German jurists who advocated the
possibility of detaching promissory obligations from their cause; see my article, Die causa vom
Code civil zum BGB (n. 11) 282, 292 f., 295 f.
21
See in particular Henri Capitant, De la Cause des Obligations (Contrats, Engagements
unilatéraux, Legs), Réimpression de l’édition de 1927 (Paris 2012) 126–163; Alfred Söllner,
Die causa im Kondiktionen- und Vertragsrecht des Mittelalters bei den Glossatoren, Kommen-
tatoren und Kanonisten, ZRG RA 77 (1960) 182–269; Hermann Dilcher, Der Typenzwang im
mittelalterlichen Vertragsrecht, ZRG RA 77 (1960) 270–303; James Gordley, The ­philosophical
origins of modern contract doctrine (Oxford 1991); for further references Schermaier, Die Rol­
le der causa (n. 11), n. 3 and 4.
22
Schermaier, Die Rolle der causa (n. 11).
23
See Schermaier, Die Rolle der causa (n. 11) 105–106.
24
See Schermaier, Die Rolle der causa (n. 11) 114–116, 117–118.
Another random document with
no related content on Scribd:
 "Confess, Henry, that Margaret is the loveliest creature in the three
kingdoms."
"Yes, theoretically she is a flawless beauty. But that is just the fault I have to
find with her. I would like her to be less perfect, less majestic, less classic. I
should love my cousin a thousand times better if God should give me my
choice between them."
"Nonsense, Henry, you don't mean what you say," said Lionel, smiling;
"family pride blinds you. By the unanimous agreement of all who have eyes in
their heads, Lady Lavinia's beauty is more than problematical; and I, who knew
her in all the freshness of her prime, can assure you that there never was any
possible comparison between them."
"Agreed; but Lavinia is so graceful and charming! her eyes are so bright,
her hair so lovely, her feet so small!"
Lionel amused himself for some time combating Henry's admiration for his
cousin. But, while he enjoyed extolling the beauty that he loved, a secret
sentiment of self-esteem made him also enjoy listening to the praise of her
whom he had formerly loved. It was a momentary impulse of vanity, nothing
more; for poor Lavinia had never really reigned in his heart, which easy
triumphs had spoiled very early. It is a great misfortune for a man to be thrust
into a prominent position too soon. The blind admiration of the women, the
foolish jealousy of vulgar rivals, are quite enough to give a false direction to an
untried judgment and to corrupt an inexperienced mind.
Lionel, from having known too much of the joy of being loved, had
exhausted the powers of his heart; from having exercised his passions too
early in life, he had made himself forever incapable of feeling a serious
passion. Beneath a handsome, manly face, beneath a youthful and vigorous
expression, he concealed a heart as cold and worn out as an old man's.
"Come, Lionel, tell me why you did not marry Lavinia Buenafè, who is to-
day Lady Blake through your fault? for, although I am no rigid moralist, and
although I am disposed to respect in our sex the God-given privilege of doing
as we please, I am unable to approve your conduct, when I reflect upon it.
After courting her for two years, after compromising her as much as it is
possible to compromise a young lady,—which is not a very easy thing to do in
blessed Albion,—after causing her to reject some most eligible offers, you
dropped her to run after an Italian singer, who certainly did not deserve the
honor of inspiring such perfidy. Tell me, was not Lavinia clever and pretty? was
she not the daughter of a Portuguese banker, a Jew to be sure, but very rich?
was she not a good match? didn't she love you to distraction?"
 "Why, my dear fellow, that is just why I complain: she loved me too much for
me ever to have made her my wife. In the opinion of every man of sense, a
lawful wife should be a gentle and placid helpmeet, an Englishwoman to the
very depths of her being, not very susceptible to love, incapable of jealousy,
fond of sleep, and sufficiently addicted to the excessive use of black tea to
keep her faculties in a conjugal state. With that Portuguese girl, ardent of
heart, active, accustomed from childhood to constant change of abode, to
unrestrained manners, liberal ideas, and all the dangerous opinions that a
woman picks up while travelling all over the world, I should have been the
most miserable, if not the most ridiculous of husbands. For fifteen months I
was blind to the inevitable misery that that love was brewing for me. I was so
young then! I was only twenty-two; remember that, Henry, and do not condemn
me. I opened my eyes at last, just when I was about to commit the signal folly
of marrying a woman who was madly in love with me. I halted on the brink of
the precipice, and I fled in order not to succumb to my weakness."
"Hypocrite!" said Henry, "Lavinia told me the story very differently: it seems
that, long before the heartless resolution that sent you off to Italy with
Rosmonda, you had already tired of the poor Jewess, and that you cruelly
made her sensible of the ennui that overpowered you when you were with her.
Oh! when Lavinia tells about that, she displays no self-conceit, I assure you;
she avows her unhappiness and your cruelty with an artless modesty which I
have never noticed in other women. She has a way of her own of saying: 'In a
word, I bored him.'—I tell you, Lionel, if you had heard her say those words,
with the accent of ingenuous melancholy that she puts into them, I'll wager that
you would have felt the stings of remorse."
"Ah! have I never felt them!" cried Lionel. "That is what disgusts a man still
more with a woman—all that he has to suffer on her account after he leaves
her, the thousand and one annoyances caused by the haunting memory of her,
the voice of bourgeois society crying for revenge and shrieking curses, the
disturbed and frightened conscience, and the exceedingly gentle but
exceedingly cruel reproaches which the poor abandoned creature heaps upon
him through the hundred voices of rumor. I tell you, Henry, I know nothing
more wearisome or more depressing than the trade of a lady-killer."
"To whom are you talking?" retorted Henry grandiloquently, with that
ironical, conceited gesture which became him so well. But his companion did
not deign to smile, and continued to ride on slowly, letting his reins lie on his
horse's neck, and resting his wearied eyes on the charming panorama which
the valley unrolled at his feet.
Luz is a small town about a mile from Saint-Sauveur. Our dandies halted
there; Lionel could not be persuaded to go on to the place where Lady Lavinia
was living; he took up his quarters in an inn, and threw himself on the bed,
awaiting the hour fixed for the meeting.
Although the climate is very much cooler in the valley of Luz than in that of
Bigorre, it was a scorching, oppressive day. Sir Lionel, stretched upon a
wretched tavern bed, felt some feverish symptoms, and fell into a troubled
sleep amid the buzzing of the insects that circled about his head in the burning
air. His companion, being more active and less disturbed in mind, crossed the
valley, paid visits all over the neighborhood, watched the riding-parties on the
Gavarni road, saluted the fair dames whom he spied at their windows or on the
roads, cast burning glances at the young Frenchwomen, for whom he had a
decided preference, and joined Lionel again about night-fall.
"Come, up, up!" he cried, pulling aside the woollen curtains; "it is the time
fixed for the meeting."
"Already?" said Lionel, who was just beginning to sleep comfortably, thanks
to the cool evening air; "what time is it, Henry?"
Henry replied, with emphasis:
 "At the close of the day when the Hamlet is still,
And naught but the torrent is heard upon the hill—"[2]

"Oh! for God's sake, spare me your quotations, Henry! I can see for myself
that it is growing dark, that silence is stealing over the landscape, that the voice
of the torrent is louder and clearer; but Lady Lavinia doesn't expect me until
nine o'clock, so I can sleep a little longer."
"No, not another minute, Lionel. We must walk to Saint-Sauveur; for I had
our horses taken there this morning, and the poor creatures are tired enough
now, to say nothing of what they still have to do. Come, dress yourself. Good!
At ten o'clock, I will be at Lady Lavinia's door on horseback, holding your
palfrey and ready to hand you your rein, exactly as our big William used to do at
the theatre, when he was reduced to playing the jockey, the great man! Come,
Lionel, here's your portmanteau, a white cravat, and some wax for your
moustache. Patience! Oh! such negligence! such apathy! Can you think of such
a thing, my dear fellow, as appearing carelessly dressed before a woman you
no longer love? that would be a terrible blunder! Pray understand that you must,
on the contrary, appear to the very best advantage, in order to make her realize
the value of what she has lost. Come, come, brush your hair back even more
carefully than if you were preparing to open the ball with Miss Margaret. Good!
Let me brush your coat a bit. What! can it be that you forgot to bring a phial of
essence of tuberose with which to saturate your silk handkerchief? That would
be inexcusable. No, God be praised! here it is. On my word, Lionel, you are
deliciously fragrant, you are magnificent; off you go. Remember that your honor
is involved in causing a few tears to flow when you appear to-night, for the last
time, on Lady Lavinia's horizon."
When they passed through the hamlet of Saint-Sauveur, which consists of
fifty houses at the most, they were surprised to see no people of fashion in the
street or at the windows. But they understood that strange circumstance when
they passed the ground-floor windows of a house from which came the shrill
notes of a violin, flageolet, and tympanon, an indigenous instrument half-way
between the French tambourine and the Spanish guitar. The noise and the dust
apprised our travellers that the ball had begun, and that the most fashionable
members of the aristocracy of France, Spain, and England, assembled in a
modest apartment, with whitewashed walls embellished with wreaths of
boxwood and wild thyme, were dancing to the strains of the most infernal
cacophony that ever rent mortal ears and marked time falsely.
Several groups of bathers, those whom a less well-filled purse or genuine ill-
health deprived of the pleasure of taking an active part in the function, were
crowded about the windows, casting an envious or satirical glance into the ball-
room over each other's shoulders, and exchanging enthusiastic or ill-natured
remarks, pending the time when the village clock should strike the hour when
every convalescent must go to bed, under pain of losing the benefit of the
mineral waters.
As our two friends passed these groups, there was a sort of oscillating
movement toward the windows; and Henry, mingling with the lookers-on,
overheard these words:
"That's the beautiful Jewess, Lavinia Blake, just standing up to dance. They
say that she's the best dancer in Europe."
"Come, Lionel," cried the young baronet; "come, see how beautifully dressed
and charming my cousin is!"
But Lionel pulled him by the arm and dragged him away from the window,
angrily and impatiently, not deigning to glance in that direction.
"Come, come!" he said; "we didn't come here to watch people dance."
But he could not move on so quickly that he did not hear another remark
made somewhere in his neighborhood:
"Ah! the handsome Comte de Morangy is her partner."
"Do me the favor to tell me who else is likely to be?" rejoined another voice.
"They say he has lost his head over her," observed a third by-stander. "He
has already used up three horses for her, and I don't know how many jockeys."
Self-esteem is so strange a counsellor, that, thanks to it, we all find
ourselves in flat contradiction with ourselves a hundred times a day. In reality,
Sir Lionel was delighted to know that Lady Lavinia was placed, by a new
attachment, in a situation which assured their mutual independence. And yet,
the publicity of the triumph which might help that discarded woman to forget the
past was a species of affront which Lionel found it difficult to swallow.
Henry, who knew the neighborhood, guided him to the end of the village, to
the house in which his cousin lived. There he left him.
This house stood a little apart from the other dwellings; the mountain rose
behind it, and the front windows overlooked the ravine. A few feet away, a
stream fell noisily into a cleft of the rock; and the house, bathed, so to speak, in
that cool, wild noise, seemed to be shaken by the falling water and on the point
of plunging with it into the abyss. It was one of the most picturesque locations
imaginable, and Lionel recognized in the choice the romantic and slightly
eccentric nature of Lady Lavinia.
An old negress opened the door of a small salon on the ground-floor. No
sooner did the light fall on her glistening, weather-beaten face, than Lionel
uttered an exclamation of surprise. It was Pepa, Lavinia's old nurse, whom
Lionel had seen for two years in attendance upon his beloved. As he was not
on his guard against any sort of emotion, the unexpected appearance of that
old woman, arousing the memory of the past, upset all his ideas for a moment.
He was very near leaping on her neck, calling her nurse, as in his youthful,
merry days, and embracing her as an old friend and faithful servant; but Pepa
stepped back, observing Lionel's eagerness with an air of stupefaction. She did
not recognize him.
"Alas! am I so changed?" he thought.
"I am the person whom Lady Lavinia sent for," he said in a faltering voice.
"Did she not tell you?"
"Yes, yes, my lord," replied the negress; "my lady is at the ball; she told me
to bring her her fan as soon as a gentleman knocked at the door. Stay here; I
will go to tell her."
The old woman looked about for the fan. It was on a marble table, at Sir
Lionel's hand. He took it up and gave it to the negress, and his fingers retained
the perfume after she had gone out.
That perfume worked upon him like a charm; his nerves received a shock
which extended to his heart and made it quiver. It was Lavinia's favorite
perfume: a species of aromatic herb which grows in India, and with which her
clothes and her furniture used always to be impregnated. That odor of
patchouly was in itself a whole world of memories, a whole life-time of love; it
was an emanation from the first woman Lionel had ever loved. A film passed
over his eyes, his pulses throbbed violently; it seemed to him as if a cloud were
floating in front of him, and in that cloud, a girl of sixteen, dark skinned, slender,
at once lively and gentle: Lavinia the Jewess, his first love. He saw her pass,
swift as a doe, skimming over the heather, riding through the game-laden
preserves of her park, urging her black hackney through the swamps; merry,
ardent, and capricious as Diana Vernon, or as the jovial fairies of the Emerald
Isle.
He soon felt ashamed of his weakness, when he thought of the ennui that
had blighted that love and all the rest. He cast a sadly philosophical glance
upon the ten years of positive existence which separated him from those days
of pastorals and poetry; then he evoked the future, parliamentary renown, and
the splendor of a political career, in the guise of Miss Margaret Ellis, whom he
next evoked herself in the guise of her dowry; and finally he began to inspect
the room in which he stood, glancing about with the sceptical expression of a
disillusioned lover, and of a man of thirty at odds with social life.
Visitors to the watering-places in the Pyrenees live in simple lodgings; but
thanks to the avalanches and torrents which wreck many houses every winter,
decorations and furniture have to be replaced or restored every spring. The
cottage Lavinia had hired was built of rough marble, and sheathed with
resinous woods inside. The wood was painted white, and was as bright and
cool as stucco. A rush mat of several colors, woven in Spain, served as a
carpet. Snow-white dimity curtains reflected the moving shadows of the firs
which shook their black tops in the night-wind, beneath the watery glance of the
moon. Small jars of varnished olive-wood were filled with the loveliest mountain
flowers. Lavinia had plucked with her own hand, in the loveliest valleys and on
the loftiest peaks, the nightshade with its ruddy breast; the monk's-hood with its
pale-blue petals and poisonous calyx; the pink and white sweet-william, with its
delicately notched petals; the pallid soap-wort; the transparent bell-flowers,
wrinkled like muslin; the purple valerian and all the wild daughters of solitude,
so fresh and fragrant that the chamois fears that he may blight them by
brushing against them as he runs, and the water of springs unknown to the
hunter barely bends them with its careless, silent stream.
That white and perfume-laden apartment had, as if unwittingly, an air of
assignation; but it seemed also the sanctuary of a pure and maidenly love. The
candles shed a timid light; the flowers seemed modestly to shield their bosoms
from the glare; no woman's garment, no symbol of coquetry, had been left lying
on the furniture; only a bunch of withered pansies and a torn white glove lay
side by side on the mantel. Lionel, obeying an uncontrollable impulse, picked
up the glove and crumpled it in his hand. It was like the cold, convulsive grasp
of a last farewell. He took up the odorless bouquet, gazed at it for a moment,
made a bitter remark about the flowers of which it was composed, and threw it
down. Had Lavinia placed it there with the purpose that it should be noticed by
her former lover?
Lionel walked to the window and put aside the curtains, to divert, by looking
upon the spectacle offered by nature, the emotion that was gradually stealing
over him. It was a magical spectacle. The house, built on the solid rock, formed
a sort of bastion to a gigantic wall of perpendicular cliffs of which the Gave
bathed the base. At the right, the cataract plunged into the ravine with a loud
roar; at the left, a clump of firs leaned far over the abyss; in the distance lay the
valley, vaguely outlined in the white moonlight. A tall wild laurel, growing in a
cleft of the rock, brushed the window-sill with its long, shiny leaves, and the
breeze, rubbing them together, seemed to be whispering mysterious words.
Lavinia entered while Lionel was engrossed by this spectacle; the noise of
the water-fall and the wind prevented him from hearing her. She stood behind
him a few moments, occupied, doubtless, in collecting her thoughts, and
perhaps asking herself if this were really the man she had loved so dearly; for,
at that moment of inevitable emotion, although the situation had been planned
beforehand, Lavinia fancied that she was dreaming. She could remember a
time when it would have seemed impossible to her that she could see Lionel
again without falling dead with grief and wrath. And now she stood there, mild
and calm, perhaps indifferent.
Lionel turned instinctively and saw her. He was not expecting her, and he
uttered an exclamation; then, ashamed of such a breach of the proprieties, and
bewildered by the emotion that he felt, he made a violent effort to bestow upon
Lady Lavinia a faultless and irreproachable salutation.
But, despite his utmost endeavors, an unforeseen embarrassment, an
unconquerable agitation, paralyzed his shrewd yet frivolous wit, that tractable,
obliging wit, which stood ever ready to be thrown into circulation, according to
the laws of affability, and to be passed, like coin, from hand to hand, for the use
of the first comer. On this occasion his rebellious wit held its peace and gazed
open-mouthed at Lady Lavinia.
You see, he did not expect to find her so beautiful. He had left her quite ill
and sadly changed. In those days, tears had withered her cheeks, sorrow had
reduced her flesh; her eyes were dull, her hands hot and dry, and she
neglected her dress. She imprudently made herself ugly then, poor Lavinia! not
thinking that sorrow embellishes a woman's heart only, and that most men are
quite ready to deny the existence of mind in woman, as was done at a certain
council of Italian prelates.
Now, Lavinia was in all the splendor of that second beauty which comes to
women who have not received incurable wounds in the heart in their first youth.
She was still a pale, thin Portuguese, with a slightly bronzed skin and a
somewhat sharp profile; but her expression and her manners had acquired all
the grace, all the caressing charm, of a Frenchwoman's. Her dark skin was as
soft as velvet, as the result of restored and unfailing health; her slender form
had recovered the lithe and flexible activity of youth; her hair, which she had cut
off in the old days as a sacrifice to love, now shone in all its splendor, in heavy
masses over her smooth brow; her costume consisted of a gown of India
muslin, and a bunch of white heather, picked in the ravine and thrust in her hair.
There is no more graceful plant than the white heather; as you watched its
delicate clusters waving over Lavinia's black hair, you would have said that they
were clusters of living pearls. That head-dress and that simple gown were in the
most exquisite taste, and the ingenious coquetry of the sex revealed itself
therein by dint of concealing itself.
Never had Lionel seen Lavinia so fascinating. For an instant, he was on the
point of falling at her feet and asking pardon; but the placid smile that he saw
on her face restored to him the modicum of bitterness necessary to enable him
to carry through the interview with every appearance of dignity.
 In default of suitable words, he took from his breast a carefully sealed
package, and said, in a firm voice, as he placed it on the table:
"You see, madame, that I have obeyed like a slave; may I believe that my
liberty will be restored to me from to-day?"
"It seems to me," rejoined Lavinia, with a somewhat melancholy playfulness,
"that your liberty has not been very tightly chained, Sir Lionel! As a matter of
fact, have you remained all this time in my fetters? I confess that I had not
flattered myself that such was the fact."
"Oh! madame, in heaven's name, let us not jest! Is not this a melancholy
moment?"
"It is an old tradition," she replied, "a conventional dénouement, an inevitable
climax in all love-stories. And if, when two people were writing to each other,
they were thoroughly impressed with the fact that in the future they would have
to wrest their letters from each other with suspicion—— But no one ever thinks
of it. At twenty years, we write with a sense of the utmost security, because we
have exchanged eternal oaths; we smile with pity when we think of the
commonplace results of all the passions that we see dying out; we are proud to
believe that we shall prove an exception to this great law of human fickleness!
Noble error, blessed conceit, wherein are born the grandeur and the illusions of
youth! isn't that so, Lionel?"
Lionel remained dumb with stupefaction. This sadly philosophical language,
although natural enough in Lavinia's mouth, seemed to him a ghastly
contradiction, for he had never seen her so: he had seen her, a weak child,
abandon herself blindly to all the errors of life, yield herself trustfully to all the
tempests of passion; and, when he had left her crushed with grief, he had heard
her continue to protest eternal fidelity to the author of her despair.
But to hear her thus pronounce sentence of death on all the illusions of the
past, was a painful and ghastly thing. That woman who survived herself, so to
speak, and who was not afraid to deliver a funeral oration on her own life, was a
profoundly depressing spectacle, which Lionel could not witness without a
pang. He could think of nothing to say in reply. He knew better than any one all
that might be said in such cases, but he had not the courage to help Lavinia to
commit suicide.
As he twisted and turned the package of letters in his hand in his
embarrassment, she continued:
"You know me well enough, or, better still, you remember enough about me,
to be sure that I reclaim these pledges of a former attachment for none of those
prudential reasons which occur to women when they cease to love. If you had
any suspicion of such a thing, I need do no more to justify myself than remind
you that these pledges have remained in your hands for ten years, and that I
have not once thought of asking you for them. I should never have made up my
mind to do it, had it not been that another woman's happiness was jeopardized
by the existence of those papers."
Lionel gazed steadfastly at Lavinia, watching for the faintest indication of
bitterness or chagrin produced by the thought of Margaret Ellis; but he could not
detect the slightest change in her expression or her voice. Lavinia seemed to
be invulnerable.
"Has this woman changed to diamond or to ice?" he asked himself.
"You are very generous," he said, in a tone which expressed both gratitude
and sarcasm, "if that is your only motive."
"What other can I have, Sir Lionel? Will you kindly tell me?"
"I might presume, madame, if I were inclined to deny your generosity,—
which God forbid!—that personal motives are behind your wish to recover
possession of these letters and this portrait."
"It would be a little late for me to think of that," laughed Lavinia; "surely, if I
should tell you that I had waited until this late day before having personal
motives,—that was your expression,—you would feel terribly remorseful, would
you not?"
"You embarrass me extremely, madame," said Lionel; and he said these
words composedly, for he was on his own ground once more. He had expected
reproaches, and was prepared for an attack; but he had not that advantage; the
enemy instantly changed her ground.
"Come, come, my dear Lionel," she said, smiling, with a glance of genuine
kindness which was entirely unfamiliar to him, who had known only the
passionate side of her nature, "don't be afraid of my abusing the opportunity.
Common-sense has come to me with years, and I have long understood that
you were not blameworthy with regard to me; I was blameworthy toward myself,
toward society, and perhaps toward you; for, between two lovers as young as
we were, the woman should be the man's guide. Instead of leading him astray
among the paths of a false and impossible destiny, she should preserve him for
the world by drawing him to her. I did not know how to do anything right; I raised
innumerable obstacles in your life; I was the cause, involuntary, to be sure, but
imprudent, of the prolonged shrieks of malediction that pursued you; I had the
horrible agony of seeing your life threatened by avengers whom I disavowed,
but who rose up against you, despite my disavowal; I was the torment of your
youth and the curse of your manhood. Forgive me; I have fully expiated the
wrong I did you."
 Lionel proceeded from surprise to surprise. He had come there, as a
defendant, to take his seat most unwillingly in the dock; and lo! he was treated
as a judge, and was humbly entreated to be merciful! Lionel was born with a
noble heart; the breath of worldly vanities had blighted it in its bloom. Lady
Lavinia's generosity moved him the more deeply, because he was not prepared
for it. Vanquished by the nobility of the character thus revealed to him, he
bowed his head and bent his knee.
"I did not understand you, madame," he said to her, in an altered voice; "I did
not appreciate your worth; I was unworthy of you, and I blush for it."
"Do not say so, Lionel," she rejoined, putting out her hand to raise him.
"When you knew me, I was not what I am to-day. If the past could be lived
again, if to-day I should receive the homage of a man occupying your position
in society——"
"Hypocrite!" thought Lionel; "she is adored by the Comte de Morangy, the
most fashionable of great noblemen!"
"If," she continued, modestly, "I had to decide upon the outward, public life of
a man whom I loved, I should perhaps be able to add to his good-fortune,
instead of destroying it."
"Is this an overture?" thought Lionel, completely bewildered.
And in his confusion he pressed Lavinia's hand fervently to his lips. At the
same time, he glanced at that hand, which was remarkably white and pretty. In
a woman's younger days, her hands are often red and swollen; later, they
become white, grow longer, and assume more graceful proportions.
The more he looked at her and listened to her, the more surprised he was to
discover newly acquired charms. Among other things, she spoke English now
with extreme purity, she had retained of the foreign accent and the awkward
locutions, for which Lionel had laughed at her mercilessly, only so much as was
necessary to impart an elegant and charming originality to her pronunciation
and her turn of phrase. It may be that the pride and timidity formerly prominent
in her character were concentrated somewhere in the depths of her being; but
there was no outward indication of them. Less downright, less stinging, less
poetic, perhaps, than she used to be, she was far more fascinating in Lionel's
eyes; she was more in accord with his ideas, more in accord with society.
How shall I tell it? After an hour's conversation, Lionel had forgotten the ten
years that separated him from Lavinia, or rather he had forgotten his whole life;
he fancied that he was with a strange woman, whom he loved for the first time;
for the past showed him Lavinia sullen, jealous, and exacting; moreover, it
showed him Lionel guilty in his own eyes; and, as Lavinia understood how
painful his memories might be, she had the delicacy to touch upon them only
with the utmost precaution.
They told each other the story of their lives since their separation. Lavinia
questioned him concerning his new love with the impartiality of a sister; she
extolled Miss Ellis's beauty, and inquired with kindly interest about her
disposition and the advantages that such a marriage was likely to afford her
former friend. For her own part, she told, in a disjointed, but clever and
entertaining way, of her travels, her friendships, her marriage to an old
nobleman, her widowhood, and the use she had since made of her wealth and
her liberty. There was no little irony in all that she said; while she rendered
homage to the power of reason, a little secret bitterness against that imperious
power showed itself now and then, betrayed itself in the guise of badinage. But
pity and indulgence were predominant in that heart, ravaged so early in life, and
imparted to it a touch of grandeur which raised it above all other hearts.
More than an hour had passed. Lionel did not count the moments; he
abandoned himself to his new impressions with the sudden and ephemeral
ardor which is the last remaining faculty of worn-out hearts. He tried, by all
possible hints, to enliven the interview by leading Lavinia to talk of the real
condition of her heart; but his efforts were of no avail: the woman was quicker
and more adroit than he. When he thought that he had touched a chord, he
found that he had only a hair in his hand. When he hoped that he was about to
grasp her moral being, and hold it fast in order to analyze it, the phantom
slipped away like a breath, and fled, intangible as the air.
Suddenly they heard a violent knocking; the noise of the torrent, drowning
everything, had prevented their hearing the first blows, and they were now
repeated impatiently. Lady Lavinia started.
"It is Henry coming to remind me," said Sir Lionel; "but, if you will deign to
grant me a few moments more, I will go to tell him to wait. May I hope to obtain
that favor, madame?"
Lionel was preparing to persist obstinately in his entreaties, when Pepa
entered hurriedly.
"Monsieur le Comte de Morangy insists upon coming in," she said to her
mistress, in Portuguese. "He is at the door, he won't listen to a word——"
"Ah! great heaven!" cried Lavinia, ingenuously, in English; "he is so jealous!
What am I to do with you, Lionel?"
Lionel stood as if struck by lightning.
"Show him in," said Lavinia, hastily, to the negress. "And do you"—to Sir
Lionel—"go out on the balcony. It is a magnificent night; you can wait there five
minutes, to do me a favor."
 And she pushed him onto the balcony. Then she dropped the dimity curtain,
and turned to the count, who entered the room at that moment.
"What is the meaning of the noise you are making?" she said, calmly. "It is a
regular invasion."
"Oh! forgive me, madame!" cried Morangy; "on my knees I implore my
pardon. When I saw you leave the ball suddenly with Pepa, I thought that you
were ill. You have not been well these last few days, and I was so frightened! In
God's name, forgive me, Lavinia! I am a fool, a madman—but I love you so
dearly that I no longer know what I am doing."
While the count was speaking, Lionel, hardly recovered from his surprise,
flew into a violent rage.
"Insolent creature!" he thought, "to dare to ask me to be present at a tête-à-
tête with her lover! Ah! if this is premeditated revenge, if it is a wilful insult, let
them beware of me! But what folly! if I should show my anger, it would simply
make her triumph. No! I will look on at the love scene with the coolness of a
true philosopher."
He leaned toward the window, and ventured to enlarge, with the end of his
riding-crop, the chink between the curtains. He was thus able to see and hear.
The Comte de Morangy was one of the handsomest men in France, tall and
fair, with a face that was more imposing than expressive, elaborately curled and
frizzled, a dandy from head to foot. His voice was soft and velvety. He lisped a
little when he talked; his eyes were large, but devoid of brilliancy; his mouth fine
and sneering, his hand as white as a woman's, and his foot shod with
indescribable elegance. In Sir Lionel's eyes, he was the most formidable rival a
man could possibly have to contend against; he was a foeman worthy of his
steel, from his whiskers to his great toe.
The count spoke French, and Lavinia answered in that tongue, in which she
was as proficient as in English. Another new talent! She listened to the red
heel's insipid speeches with singular patience. The count ventured upon two or
three impassioned sentences, which seemed to Lionel to depart somewhat
from the rules of good taste and dramatic propriety. Lavinia did not lose her
temper; there was not even a suspicion of mockery in her smile. She urged the
count to return first to the ball, saying that it would not be proper for her to
return with him. But he persisted in his purpose to escort her to the door,
swearing that he would not go inside until she had been there a quarter of an
hour. As he spoke, he seized Lady Blake's hands, which she abandoned to him
with indolent and provoking heedlessness.
Sir Lionel lost his patience.
 "I am a great fool," he said to himself, at last, "to look on patiently at this
mystification, when I can go away."
He walked to the end of the balcony. But there was a high balustrade, and
immediately below was a ledge of rocks which bore little resemblance to a path.
Nevertheless, Lionel boldly ventured to climb over the balustrade, and to walk a
few steps along the ledge; but he was soon brought to a halt, for the ledge
terminated abruptly at the water-fall, and even a chamois would have hesitated
to go a step farther. The moon disclosed to Lionel the depth of that abyss from
which only a few inches of rock separated him. He was obliged to close his
eyes to overcome the vertigo that assailed him, and to crawl slowly back to the
balcony. When he had succeeded in climbing over the balustrade once more,
and found that frail bulwark between him and the precipice, he deemed himself
the most fortunate of men, even though his rival's triumph was the price he
must pay for that shelter. He had no choice but to listen to the Comte de
Morangy's sentimental tirades.
"Madame," he said, "you have played with me too long. It is impossible that
you should not know how I love you, and I think it very cruel of you to treat me
as if I acted on one of those fancies which are born and die in a day. My love for
you is a sentiment that will endure throughout my days; and if you do not accept
my consecration of my life to you, you will see, madame, that a man of the
world may lose all respect for the proprieties, and throw off the sway of cold
reason. Oh! do not reduce me to despair, or else beware of its effects."
"So you wish me to speak frankly, do you?" replied Lavinia. "Very well; I will
do so. Do you know my story, monsieur?"
"Yes, madame; I know all. I know that a miserable wretch, whom I look upon
as the lowest of men, shamefully deceived you and abandoned you. The pity
which that misfortune arouses in me adds to my fervor. Only great hearts are
doomed to be victims of men and of public opinion."
"But, monsieur," rejoined Lavinia, "you must know that I have been able to
profit by the stern lessons of my destiny; that I am on my guard to-day against
my own heart and against another's. I know that it is not always in a man's
power to keep his oaths, and that whatever he obtains he misuses. That being
so, monsieur, do not hope to move me. If you are speaking seriously, here is my
reply: I am invulnerable. This woman who has been so decried for her youthful
errors, is surrounded henceforth by a stouter rampart than virtue—distrust."
"Ah! I see that you do not understand me, madame," cried the count, falling
on his knees. "May I be accursed if I have ever had a thought of presuming
upon your misfortunes, to hope for sacrifices which your pride condemns."
"Are you perfectly sure that you have never had such a thought?" said
Lavinia, with her sad smile.
 "Well, I will be frank," said Monsieur de Morangy, with an accent of truth in
which the mannerisms of the great nobleman vanished entirely. "Perhaps I may
have had, before I knew you, the thought which I spurn now with profound
remorse. In your presence, feigning is impossible, Lavinia; you subdue the will,
you reduce cunning to naught, you command veneration. Oh! since I have
known what you are, I swear that my adoration has been worthy of you. Listen
to me, madame, and let me await my sentence at your feet. I desire to devote
my whole future to you by oaths that cannot be broken. It is an honorable
name, I venture to believe, and a handsome fortune, of which, as you are
aware, I am not vain, that I lay at your feet, as well as a heart that adores you, a
heart that beats for you alone."
"So you really mean to offer me marriage?" said Lady Lavinia, without,
however, exhibiting offensive surprise. "I thank you, monsieur, for this proof of
esteem and attachment."
And she offered him her hand with much warmth.
"God of mercy! she accepts!" cried the count, covering that hand with kisses.
"No, monsieur," said Lavinia; "I ask you to give me time for reflection."
"Alas! but may I hope?"
"I do not know; rely, at all events, upon my gratitude. Adieu. Go back to the
ball; I insist upon it. I will be there in an instant."
The count passionately kissed the hem of her cape, and left the room. As
soon as he had closed the door, Lionel put aside the curtain, ready to receive
permission from Lady Blake to return. But she was sitting on the sofa, with her
back to the window. Lionel could see her face reflected in the mirror opposite
them. Her eyes were fixed on the floor, her attitude dejected and thoughtful.
Buried in absorbing meditation, she had completely forgotten Lionel, and the
exclamation of surprise that escaped her when he suddenly appeared in the
room was an ingenuous avowal of that painful absorption.
He was pale with anger; but he restrained himself.
"You must agree," he said to her, "that I respected your new attachment,
madame. It required the most profound disinterestedness to listen to insulting
remarks about myself, purposely provoked, perhaps,—and to remain quietly in
my hiding-place."
"Purposely?" repeated Lavinia, gazing sternly at him. "How dare you think so
of me, monsieur? If you entertain such ideas, go!"
"No, no; I do not think so," said Lionel, walking toward her, and grasping her
arm excitedly. "Pay no heed to what I say. I am very much disturbed.—You
surely must have relied upon my strength of mind, to force me to witness such
a scene."
"On your strength of mind, Lionel? I don't understand that phrase. You
mean, do you not, that I counted upon your indifference?"
"Laugh at me as much as you choose; be pitiless, trample on me! you have
the right to do it. But I am very unhappy!"
He was deeply moved. Lavinia believed, or pretended to believe, that he
was acting a part.
"Let us have done with this," she said, rising. "You should have taken
advantage of the reply you heard me make just now to the Comte de Morangy;
and yet that man's love does not offend me.—Farewell, Lionel! Let us part
forever, but not in bitterness of spirit. Here are your letters and your portrait.
Come, release my hand; I must return to the ball."
"You must return to dance with Monsieur de Morangy, I suppose?" said
Lionel, dashing his picture angrily on the floor, and grinding it under his heel.
"Listen," said Lavinia, slightly pale, but calm; "the Comte de Morangy offers
me high rank and complete rehabilitation in society. My marriage to an elderly
nobleman never cleansed me completely from the cruel stain that disfigures an
abandoned woman. Every one knows that an old man always receives more
than he gives. But a wealthy, noble young man, envied by all, loved by the
women,—that is a very different matter! That deserves consideration, Lionel;
and I am very glad that I have handled the count carefully thus far. I divined
long ago the honesty of his intentions."
"O woman! vanity never dies in you!" exclaimed Lionel angrily, when she
had gone.
He joined Henry at the inn. His friend was awaiting him impatiently.
"The devil take you, Lionel!" he cried. "Here have I been waiting in my
stirrups a good hour for you! Think of it! two hours for an interview of this sort!
Come, off we go! you can tell me about it on the road."
"Good-night, Henry. Go, tell Miss Margaret that the bolster lying in my bed is
at death's door. I remain here."
"Heavens and earth! what do you say?" cried Henry; "you don't mean to go
to Luchon?"
"I will go some other time; I shall remain here now."
"Why, you are dreaming, man! It isn't possible! You can't have made it up
with Lady Blake?"
 "No, not so far as I know; far from it! But I am tired and out of sorts, lame all
over; I am going to remain here."
Henry fell from the clouds. He exhausted all his eloquence to induce Lionel
to go; but, failing utterly, he dismounted, and tossed his bridle to the hostler.
"Well, if you are determined, I will also stay," he exclaimed. "It seems to me
such a good joke, that I propose to see it through to the end. To the devil with
love-affairs at Bagnères, and the plans we made on the road! My excellent
friend Sir Lionel Bridgemont is giving a performance for my benefit; I will be an
attentive and absorbed witness of his drama."
Lionel would have given all the world to be rid of this irresponsible, bantering
spy upon his actions; but it was impossible.
"As you are determined to follow me," he said, "I warn you that I am going to
the ball."
"To the ball? very good. Dancing is an excellent remedy for the spleen and
lameness."
Lavinia was dancing with Monsieur de Morangy. Lionel had never seen her
dance. When she had come to England, she knew nothing but the bolero, and
she had never ventured to dance it under the austere skies of Great Britain.
Since then, she had learned our contradances, and she displayed in them the
voluptuous grace of the Spaniard combined with an indefinable touch of English
prudery, which tempered its exuberance. People stood on the benches to watch
her dance. The Comte de Morangy was triumphant. Lionel was lost in the
crowd.
 LIONEL SURPRISES LAVINIA.
When Lavinia returned to her place, Lionel
—the count's attention being distracted for a
 moment—glided adroitly to her side, and
picked up her fan, which she had just
dropped.

There is so much vanity in the heart of man! Lionel suffered bitterly to see
her who was long swayed and imprisoned by her love for him, who was once
his alone, and whom the world would not have dared to come to take from his
arms, now free and proud, encompassed by homage, and finding in every
glance revenge or reparation for the past. When she returned to her place,
Lionel—the count's attention being distracted for a moment—glided adroitly to
her side, and picked up her fan, which she had just dropped. Lavinia did not
expect to see him there. A feeble cry escaped her, and her face turned
perceptibly pale.
"Ah! great heaven!" she exclaimed; "I thought that you were on the road to
Bagnères."
"Have no fear, madame," he said, in an undertone; "I will not compromise
you with the Comte de Morangy."
However, he could not restrain himself for long, but soon returned and asked
her to dance.
She accepted his invitation.
"Must I not ask Monsieur le Comte de Morangy's permission also?" he
asked.
The ball lasted until daybreak; Lady Lavinia was sure of making such
functions last as long as she remained. Under cover of the confusion which
always creeps into the most orderly festivity as the night advances, Lionel was
able to speak with her frequently. That night completely turned his head.
Intoxicated by the charms of Lady Blake, spurred on by the rivalry of the count,
irritated by the homage of the crowd, which constantly thrust itself between him
and her, he strove with all his power to rekindle that extinct passion, and self-
esteem made its spur felt so sharply that he left the ball in a state of
indescribable excitement.
He tried in vain to sleep. Henry, who had paid court to all the women, and
danced all the contradances, snored lustily. As soon as he awoke, and while
rubbing his eyes, he said:
"Well, Lionel, God save us, my dear fellow! this is a very entertaining
episode, this reconciliation between you and my cousin; for you need not hope
to deceive me, I know the secret now. When we entered the ballroom, Lavinia
was sad, and dancing with an absent-minded air; as soon as she saw you, her
eyes lighted up, her brow cleared. She was radiant during the waltz, when you
whirled her through the crowd like a feather. Lucky Lionel! a lovely fiancée and
a fine dowry at Luchon, a lovely mistress and a grand triumph at Saint-
Sauveur!"
"A truce to your nonsense!" said Lionel, angrily. Henry was dressed first. He
went out to see what was going on, and soon returned, making his accustomed
uproar on the staircase.
"Alas! Henry," said his friend, "will you never lose that gasping voice and that
frantic gesticulation? You always act as if you had just started a hare, and as if
you took the people you were talking to for uncoupled hounds."
"To horse! to horse!" cried Henry. "Lady Lavinia Blake is in the saddle; she is
about starting for Gèdres with ten other young madcaps and Heaven knows
how many beaux, the Comte de Morangy at their head—which does not mean
that she has not the Comte de Morangy in her head, be it understood!"
"Silence, clown!" cried Lionel. "To horse, as you say, and let us be off!"
The riding-party had the start of them. The road to Gèdres is a steep path, a
sort of staircase cut in the rock, skirting the precipice, presenting innumerable
obstacles to horses, innumerable real dangers to their riders. Lionel started off
at a gallop. Henry thought that he was mad; but, considering that his honor was
involved in not being left behind, he rode after him. Their arrival created a
strange effect on the caravan. Lavinia shuddered at sight of those two reckless
creatures riding along the edge of a frightful abyss. When she recognized
Lionel and her cousin, she turned pale and nearly fell from her horse. The
Comte de Morangy noticed it, and did not take his eyes from her face. He was
jealous.
His jealousy acted as an additional spur to Lionel. Throughout the day, he
fought obstinately for Lavinia's slightest glance. The difficulty of speaking to her,
the excitement of the ride, the emotions aroused by the sublime spectacle of
the region through which they rode, the clever and always good-humored
resistance of Lady Blake, her skill in managing her horse, her courage, her
grace, the words, always natural and always poetic, in which she described her
sensations,—all combined to stir Sir Lionel to the depths of his being. It was a
very fatiguing day for the poor woman, beset by two lovers between whom she
tried to hold the scales even; so that she accorded a grateful welcome to her
jovial cousin and his noisy nonsense, when he spurred his horse between her
and her adorers.
At night-fall, the sky was covered with clouds. A severe storm seemed
imminent. The riders quickened their pace, but they were still more than a
league from Saint-Sauveur when the storm burst. It grew very dark; the horses
were frightened, and the Comte de Morangy's ran away with him. The little