Fiction vs. Reality, In re Contracts: A Survey

The history and philosophy of the law of contracts has more than academic interest. In some areas there are conflicts and uncertainties that stem from the history, nature and basis of contracts. Primitive men were familiar with the idea of possession which later developed into the idea of ownership. And a person having possession or ownership has long been able to transfer whatever he had to another.' But the idea of obligation was a later development in the advance of civilization.

Obligations, as we know them at present, would have been incredible to primitive men. Do we fully realize even now the nature of an obligation? It has no tangible existence. It is only a figment of the mind.

And yet, it is a powerful means of controlling what the obligor shall do; The obligation can be owned, bought and sold, and inherited. Its owner can be taxed because he has it. Such ideas are pabulum for men who are advanced in civilization and acumen. Even now a bank depositor is likely to say that he has money in the bank.

He may, if he is a layman, really think he has money in the bank. In truth he has nothing in the bank. He has a claim against the bank. When the bank received his money it expressly or impliedly undertook to make repayment.

The bank thus created and incurred obligation. That obligation is what the depositor has. The nature of an obligation itself, and the manner of its creation, were both beyond the ken of primitive men.