The Real Contracts and the Consensualism's Principle

Abstract

The purpose of this paper is to make a distinction between real contracts and consensual contracts, especially in the light of the consent principle, in order to question, conclusively, whether the differentiation is void, should be maintained or should be dispensed with. In the development of this paper, first the Roman source is explored, through the examination of the "contracts" and the evolution of Contractual Law in Rome. The thematic questioning then enters into the Middle Ages and reaches the Modern Age, the latter period marked by the abandonment of rigid forms, the contract being completed by mere consent. Secondly, a criticism is raised concerning the excessively broad application of the consent principle, witch impairs other revigorated principles found in Contract Law such as the principle of the social function of the contract. In support of the criticism, an analysis of real contracts in specie is later made - loan, commodatum, deposit, always seeking forms of expression for the Roman equivalents. In conclusion, divergent doctrinary opinions on the fundamental thesis are outlined: does the distinction between consensual and real contracts still subsist? And, in view of the foregoing it is concluded that there are insufficient grounds for abolishing the distinction, ratifying positions assumed in the course of the study such as the following: the consent principle is present in all types of contracts; it is, therefore, also found in real contracts, in spite of the fact that it is said of the latter that they are only completed with the delivery of the thing. Without such delivery, there is no void contract, for a contract does not even exist. Without delivery, the real contract will merely be in the process of being completed, although already marked by the consent principle.