2. CONTRACTING INSTITUTIONS: REGISTRATION AND ENFORCEMENT

Although each of the articles in this special issue considers a specific historical setting, the work done by all the various contracting institutions examined can be placed under one of two broad headings: contract registration, and contract enforcement.

The purpose of registering a new contract was to give legal validity to an agreement, as well as to make it public, and to specify the terms and conditions involved. As the studies in this issue demonstrate, there were many varieties of contract registration. An important contrast is that between written and purely oral contracts. In some settings, most contracts were written down at the registration stage. This appears to have been the case in fourteenth-century Catalonia. The studies in this issue by Lluís Sales i Favà and Xavier Soldevila i Temporal confirm the importance of urban and village notaries as agents for recording and authenticating rural contracts in southern Europe.Footnote ⁹ Notaries were scribes with public authority to write down a wide variety of legal documents.Footnote ¹⁰ However, it was not only in registers of notaries that the private agreements investigated here were recorded. They were also frequently registered in law courts. In Catalonia, many contracts were recorded before local courts located in small towns and villages. Here, the relevant courts were exercising juridiction gracieuse – the power to authenticate private acts – as opposed to juridiction contentieuse, or the power to adjudicate genuine disputes.Footnote ¹¹

Yet it was also possible to register a contract without writing it down, and in many places such oral contracts had a significant role. The Polish village court records examined here by Piotr Guzowski were an important site for the registration of peasant credit arrangements, yet there are indications that many arrangements involving smaller sums were not written down.Footnote ¹² Furthermore, in his discussion in this issue of the contracting institutions provided by the village law courts of fifteenth- and sixteenth-century Holland, Jaco Zuijderduijn divides the broad category of registration into two distinct elements: ratification and registration proper.Footnote ¹³ Ratification was the procedure by which the court's judges established the validity of an agreement and its conformity with local law. Registration was the process of writing down a ratified agreement, but before the mid-sixteenth century not all such agreements were registered.Footnote ¹⁴

In England between c.1200 and c.1500, too, the formation of rural contracts in a purely oral manner remained very common, despite an increase in the importance of written registration.Footnote ¹⁵ A variety of institutions could potentially be involved in the registration of new private contracts in England in this period, and registration could take several different forms.Footnote ¹⁶ Sealed private deeds recording a variety of obligations were used throughout rural society.Footnote ¹⁷ Contracting parties could also notify their obligations to a law court, and have them enrolled in its records. A well-known example of this is the ‘recognizance’ of debt, which stated the terms and conditions of future debt repayment; if a creditor could later show that the payments specified in the recognizance had not been made, then the court could implement enforcement procedures immediately. Recognizances have been identified in the records of a variety of law courts, including seigniorial, urban and royal jurisdictions.Footnote ¹⁸ Written documents clearly offered a more powerful form of proof than oral testimony. Yet one should not exaggerate the extent to which writing was used in England to register contracts in rural transactions, or in transactions involving rural with urban parties.Footnote ¹⁹ Many – perhaps most – contracts in these categories were made orally. This is known because there exist records of thousands of cases in different kinds of court that concern the enforcement of contracts for which no written evidence is provided. It is still justifiable to speak of such oral contracts as being ‘registered’, however, since many of them were clearly made publicly before witnesses. These witnesses played a role if the contract needed to be enforced.Footnote ²⁰

The written registration of private contracts was clearly not universal in the European countryside in this era. It is already widely recognised that figures directly equivalent to the notary who was so important in the Roman Law areas of southern Europe did not exist in England or other parts of northern Europe.Footnote ²¹ The studies collected here therefore draw renewed attention to this regional contrast and its implications.

Contract enforcement, which is considered in greater detail in the remainder of this Introduction, came into play when one of the parties had failed to meet his or her obligations. The contracting institutions for enforcement examined in the present context were all courts of law of various kinds. The enforcement function of the court depended, first, upon its capacity to determine liability and, second, upon its power to compel those deemed to have broken contracts to perform their obligations or provide compensation. Although it is convenient to distinguish registration and enforcement, the two elements were linked. A major reason for registering a contract was to obtain proof of its existence and terms, should enforcement become necessary. Furthermore, the specific body responsible for the registration of a contract was often also responsible for its enforcement.

It is clear that rural Europe in this era was home to a wide variety of contracting institutions. Those contracts that were not sealed via a simple handshake before witnesses might be written down and thus authenticated in a private deed, in the register of a notary, or in the records kept by a huge range of different legal jurisdictions. Legal proceedings to effect contract performance or to exact compensation could be brought in a similarly vast array of court types, just a few examples of which are explored in the essays in this special issue. While it is possible to group the relevant jurisdictions according to the authorities that convened and controlled them (princes, landlords, town authorities, village officials, churchmen), there was clearly scope for significant variation within each category.

3. IMPERSONAL EXCHANGE BETWEEN TOWN AND COUNTRY

Where exchange takes place between people who are well known to one another and engaged in repeat transactions with one another, the cost of enforcing contracts is generally low. Such actors are usually well informed about the circumstances and characteristics of those with whom they exchange. This allows them to avoid transactions with persons whom they expect to be unwilling or unable to stick to a bargain. Furthermore, the potential for repeat transactions between two parties reduces the incentive for opportunistic behaviour. Enforcement costs tend to be higher, however, where exchange is impersonal – that is, where it involves parties previously unknown to one another participating in one-off transactions. By its nature, impersonal exchange will also typically bring together people from different locations. In such transactions, the parties are more likely to require a written contract, or (in the case of a loan, for example) to demand a higher interest rate to deal with the risk of default. Impersonal exchange is more risky, but it is also essential to the expansion of markets and to economic growth. Without impersonal exchange, individuals are restricted to trading within their own communities. It is therefore not surprising that a good deal of analysis has been done on the historical conditions in which impersonal exchange has developed.Footnote ²²

In work on pre-modern contract enforcement and impersonal exchange, particular attention has been given to long-distance trade involving merchants, many of whom were involved in trade in luxury goods. This interest is understandable. The fundamental problem of exchange was particularly acute for merchants trading across international borders with strangers from other polities. Study of these trading relationships has thus allowed debate on pre-modern contract enforcement to be precisely and clearly framed, as is demonstrated by discussions of concrete examples such as trade at the Champagne fairs, or the activities of the Maghribī traders of the medieval Mediterranean.Footnote ²³

However, consideration of this work on the activities of international merchants simply underlines how little attention by comparison has been paid to the contracts of ordinary peasants and townsmen that arose in the course of local and regional trade. The European economy in this period was of course overwhelmingly rural and the vast majority of gross domestic product (GDP) was produced in the countryside. Much of the European market activity of this period involved trade links in raw materials and manufactured goods extended between town and countryside, and within the countryside itself.Footnote ²⁴ Indeed, the reciprocal trading relationships existing between both large and small towns and their hinterlands have been seen as key determinants of the levels of productivity and specialisation achieved within different sectors of the pre-modern economy.Footnote ²⁵ Contracts and contract enforcement were at the heart of these relationships. To take just one hypothetical example: if an urban merchant could not be certain that a peasant from the hinterland would, in exchange for payment in advance, deliver grain of the right kind and quality on time and in the correct quantity, he might think twice about entering into a contract of this type. Whether he did so would in part depend on the contracting institutions available. In short, we now know a lot about the solutions to the fundamental problem of exchange adopted by international merchants. Much less has been written about the solutions adopted by those who participated on the smaller-scale but much more ubiquitous local trade that linked towns and villages.Footnote ²⁶ To draw attention to this gap and explore the role of contracting institutions in rural and rural–urban impersonal exchange is a major motivation behind the present collection.

4. ‘PUBLIC-ORDER’ AND ‘PRIVATE-ORDER’ CONTRACTING INSTITUTIONS

All the contracting institutions discussed in this special issue, from the notaries to the village law courts, can be categorised as formal, public-order institutions which entailed using a third party to record and enforce private agreements. This means that, in spite of their diversity, each institution possessed coercive powers derived from public authority and/or observed externally generated legal principles. The fourteenth-century Catalan local courts discussed in two of the articles by Sales i Favà and Soldevila i Temporal, for example, enforced a shared body of law and were subject to superior authorities: royal, comital and episcopal. Given this, it is justifiable to refer to all the courts and bodies examined here as state institutions.

Our focus on formal, public contracting institutions deserves emphasis, since much of the relevant literature (including that on pre-modern long-distance trade) has asked whether an analysis restricted to such public or state institutions can tell the full story about contract enforcement. This literature contrasts such public-order institutions with ‘private-order’ institutions.Footnote ²⁷ The latter encompass a variety of informal arrangements based (for example) on reputation, arbitration and collective reprisals. These, it is argued, allow impersonal exchange to take place even in the absence of effective formal contracting institutions. This argument bears on the prospects for impersonal exchange and markets in contemporary developing states where the formal legal system is weak or has failed.Footnote ²⁸

A further purpose of the present collection is thus to draw attention to the ubiquity, diversity and importance of public-order contracting institutions, especially formal law courts and notaries, in the largest sector of medieval and early modern European trade. Private-order arrangements may also have played a significant role in aspects of rural exchange, but if they did so it was not because public-order institutions were absent from or weak in the medieval and early modern countryside.

5. FRAGMENTED AND OVERLAPPING JURISDICTION: THE EPSTEIN HYPOTHESIS

The rural law courts of medieval and early modern Europe were formal public institutions. However, this does not mean that the historian of this period should treat these individual courts as uniform elements within a seamless, centralised state legal ‘system’. Instead, each separate jurisdiction was to some extent self-contained. In practical terms this might mean, for example, that the jurisdiction was largely or even exclusively concerned with contracts made within its own boundaries, or involving persons resident within those boundaries. ‘Self-contained’ might also mean that the rules, procedures and territorial competence of each court subtly differed from those of its neighbours, in ways not obvious to outsiders. Finally, it might mean that the adjudications about contracts made in each court reflected the financial and political interests of the influential locals who ran the court, rather than the equities of each case.

It is this tendency of pre-modern local courts to function in a self-contained fashion, amounting at times to autonomy, which is envisaged in works that focus on the political and jurisdictional fragmentation of Western Europe in this era.Footnote ²⁹ A group of such studies by the late S. R. Epstein is particularly stimulating for any consideration of rural contracting.Footnote ³⁰ In proposing a model to account for the stalling of the European economy in the fourteenth century and the subsequent market-driven economic growth of the early modern period, Epstein put particular emphasis on the issue of centralised versus decentralised political and legal authority. He argued that ‘strong feudal and urban jurisdiction was incompatible with long-run economic growth’, and that ‘the fundamental constraints in the feudal economy came from the market monopolies and other coordination failures arising from political and jurisdictional parcellization, rather than from technological inertia’.Footnote ³¹ Although in presenting this model Epstein was concerned with much more than just courts and the law, and did not seek to support his model with detailed case studies, it is clear that he saw the multiplicity of legal jurisdictions of thirteenth- and fourteenth-century Europe as an obstacle to impersonal trade, and to trade between town and country in particular. Furthermore, Epstein viewed centralisation of the state, brought about primarily through increased warfare and taxation, as key to ending the economic stagnation of the later medieval period. ‘In the long run, centralization prevailed, leading to a slow reduction in transaction costs and stimulating commercialization and specialization.’Footnote ³²

In order to explore Epstein's model and evaluate its validity, it is necessary to distinguish two main ways in which the multiplicity of decentralised rural legal jurisdictions might have posed problems, in theory at least, for the enforcement of impersonal private contracts. These are referred to here as ‘fragmented jurisdiction’ and ‘overlapping jurisdiction’. Fragmented jurisdiction denotes a patchwork of adjoining jurisdictions (seigniorial, urban, ecclesiastical, royal, etc.), each with the power to adjudicate contracts arising within a clearly defined territory, or involving specific persons. Fragmented jurisdiction might pose a problem for contract enforcement if, for example, the two parties to the contract resided within different jurisdictions. In this instance, the court that adjudicated the case might be biased against the non-resident party. It might also be prohibitively expensive for the non-resident party to travel to use the relevant court. Overlapping jurisdiction, by contrast, refers to a situation in which more than one court exercised jurisdiction over a single contract. Here the potential obstacles to contract enforcement are less obvious. However, it is certainly possible to imagine a scenario in which competition between courts over adjudication of a particular contractual dispute led to delays in its resolution.

In the remainder of this section, we argue that the case studies presented in this special issue show the presence of fragmented and overlapping jurisdiction in settings as diverse as fourteenth-century Catalonia and sixteenth-century Poland. Both features were present in England, too, in the period under consideration. In this sense, we find that Epstein was certainly right to point to the multitude of jurisdictions as an important feature of this period. What is less clear is that the fragmented and overlapping jurisdiction entailed by the multiplicity of courts invariably had the negative impact on contract formation envisaged by Epstein's model.

Even in a relatively unified polity like England, with its system of royal common law applying to the entire kingdom, fragmented and overlapping jurisdiction was the norm. In medieval England jurisdiction over lesser private contracts was shared between a number of different categories of jurisdiction, namely local, ecclesiastical and borough courts. In this setting, not only did the individual courts within each category of jurisdiction form a patchwork, but there was also overlap between the categories, so that various local and ecclesiastical courts (for example) could all claim jurisdiction over a single contract dispute.

When it came to the enforcement of rural contracts in England between c.1200 and c.1500, the combination of potentially relevant courts was complex. The tribunals with the authority to hear cases about private contracts were as follows: local jurisdictions run by landlords, most notably the thousands of manor courts; other local courts with jurisdiction over the county or hundred (an administrative subdivision of the county); borough courts situated in towns, which frequently heard cases involving rural litigants; ecclesiastical jurisdictions at the diocesan level and below; and the royal courts of common law, comprising the central courts at Westminster and the various categories of provincial session held before royal justices.

Of these, which court or courts had jurisdiction over a particular debt or contract? The answer depended heavily on the size of the monetary claim being made. The place of residence of the parties was also important. It is possible to make a crude generalisation about the kinds of contracts enforced by particular kinds of courts. This would suggest that the more significant contracts (in monetary terms) were enforced by lawsuits in the royal courts. The royal courts also had few territorial limitations on their powers, being able to exercise jurisdiction even where plaintiff and defendant lived a long distance from one another. Contracts involving lesser sums, on the other hand, were mostly enforced through an action in one of the local, ecclesiastical or borough courts. Such courts often had significant territorial limits on their powers, being unable to enforce judgements against parties who lived outside their jurisdiction.Footnote ³³ It also seems true that cases in the royal courts were more likely than those in local courts to involve written records as proof of the existence and terms of a contract.

Thus for any one disputed lesser contract there were a number of different courts all enjoying the power, potentially, to enforce it. For example, in 1299 one Matilda, widow of Gilbert Adam of Bourn, a village some 10 miles (16 kilometres) from Cambridge, sued Robert Mile, also of Bourn, before the royal justices in eyre (itinerant justices) sitting at Cambridge. Matilda claimed that Robert owed her two quarters (5.6 hectolitres) of maslin (a mixture of wheat and rye) worth six shillings. There is not enough detail to show conclusively that this withholding arose from a broken contract, but this seems very likely; given that Matilda was a widow, the contract may have involved her deceased husband. A jury decided that Matilda should recover the six shillings from Robert, plus two shillings in damages. In this example, Matilda chose to prosecute an oral complaint before the royal justices. However, she could just as easily have sued for this debt before Robert's local manor court at Bourn, before the court of Longstowe hundred (in which Bourn lay), before the Cambridgeshire county court, or before a local ecclesiastical court.Footnote ³⁴ All these courts were empowered to exercise justice over a broken contract involving these parties.

All four case studies appearing in this special issue also demonstrate the existence of fragmented and overlapping jurisdiction. Fragmented jurisdiction was especially prominent. In fifteenth- and sixteenth-century Holland, as Zuijderduijn shows, the village law courts constituted a patchwork of jurisdictions, each enjoying authority over transactions and disputes occuring within its territory. Sales i Favà and Soldevila i Temporal describe the multitude of local jurisdictional or bailiffs' courts, each with a clearly defined boundary to its powers, which existed in the two regions of medieval Catalonia they examine. Furthermore, in fifteenth- and sixteenth-century Poland, as Guzowski shows, courts serving all villages other than the smallest coexisted with a large number of courts catering for the gentry and for the citizens of individual towns. The case studies say less about overlapping jurisdiction, which was present in fourteenth-century north-eastern Catalonia at least, where the court of the royal vicar and the court of the bishop of Girona exercised a superior jurisdiction over the entire region considered in Sales i Favà's article.

Did the multiplicity of courts involved in contract enforcement pose problems for trade in the countryside, and between town and countryside? In England, fragmented jurisdiction could potentially pose an obstacle, as the following example suggests. In November 1302, two debt lawsuits were begun in the manor court in the village of Fornham St Martin, Suffolk. Fornham lay about one mile north of Bury St Edmunds, a town with perhaps 7,000 inhabitants in 1300.Footnote ³⁵ The plaintiff in these cases was Hugh David. To judge by his complaints, and the fact that his name is not traceable elsewhere in the Fornham court records, it is probable that Hugh resided in Bury. The defendant in both cases was Robert Curteys, whom the court records reveal as among the most influential and prominent Fornham villagers of this period.Footnote ³⁶ In the first lawsuit Hugh claimed that in 1299 at Bury Robert had bought from him one horse for eight shillings. The contract was made in June, with payment to be effected in September. However, Hugh claimed that Robert had failed to pay as arranged. In the second case, Hugh stated that in July 1300 Robert had bought beef and mutton from him to the value of two shillings and sixpence, but had failed to pay up in September as agreed. Robert's response to the first claim was that at Hugh's instruction he had in fact paid the eight shillings at Christmas to Hugh's daughter Johanna in Bury. Hugh denied this. In the end the parties compromised: Robert would pay five shillings, and the remaining three shillings were waived. Robert's response to the second claim was a blunt denial, and a call for an inquest jury, which decided in favour of the defendant. Having lost this second lawsuit, the plaintiff was fined sixpence.Footnote ³⁷

This example illustrates the potential difficulties of contract enforcement in a situation of fragmented jurisdiction. Hugh was obliged to travel to Robert's local court in order to enforce the contract, as the borough courts in Bury presumably had no jurisdiction over Robert. Beneath the dry legal phraseology there are also strong hints that the defendant, Robert, was seeking to capitalise on the ‘home-court advantage’, as Zuijderduijn calls it in his contribution to this special issue. In the first lawsuit Robert's initial story about paying the money to Johanna was possibly untrue, given that in the end he was prepared to repay part of the debt. He may have tried this opening tactic simply to see if he could convince sympathetic listeners in the court. In the second lawsuit, the manorial jurors decided in favour of Robert, their powerful neighbour. They probably had little incentive to do otherwise, whatever the truth of the matter. Hugh might have achieved a better outcome by suing Robert in the local hundred court or church court. Maybe he had already tried this. Overall, this pair of cases can certainly support the view that jurisdictional fragmentation created obstacles for contract enforcement.

Although it is possible to identify individual cases of this kind, it is not obvious that they are typical. The records of many different local courts from medieval and early modern England provide examples of non-resident parties successfully prosecuting contract lawsuits, or being successfully prosecuted in such lawsuits.Footnote ³⁸ Rather than excluding outsiders, indeed, some individual jurisdictions sought to improve their procedures in order to attract private litigation over contracts, including the litigation of individuals resident outside the jurisdiction.Footnote ³⁹ While in theory, therefore, fragmented jurisdiction may have hindered effective contract enforcement and thus the development of impersonal trade between inhabitants of different localities, there is relatively little evidence of this happening in practice in medieval and early modern England. Furthermore, it is probable that overlapping jurisdiction, or the availability of a choice of courts in which to enforce a particular broken agreement, did little to hinder trade and contracts, and may actually have encouraged their proliferation. The consequence of competition among the various categories of court for business related to the resolution of interpersonal disputes was arguably a streamlining of procedures in order to enhance their speed, fairness and predictability. All of this would have been to the benefit of the parties to private contracts.Footnote ⁴⁰

The case studies in this collection also provide little support for Epstein's thesis. Most notably, Zuijderduijn's analysis of the interest rates demanded in annuity contracts by residents of the village of Mijnsheerenland and by outsiders shows no significant difference in the rates paid to the two groups. This evidence that outsiders, including numerous townspeople, did not demand an additional premium to compensate them for risk when dealing with local people suggests that they trusted the institutional framework of Mijnsheerenland to provide them with impartial legal security.

Although Zuijderduijn's study represents the only quantitative analysis of the effects of jurisdictional fragmentation in this collection, all the other articles point to the same conclusion, namely that the existence of a multitude of different contracting institutions did little to undermine the development of impersonal trade and economic ties between town and country. It is likely that future research into the relationships between legal institutions and markets in pre-modern Europe will complicate this picture, and allow us to pinpoint local systems of contract registration and enforcement that worked more efficiently than others, and which may therefore have helped to stimulate particularly significant market exchange and economic growth in certain times and places. At present, however, it must suffice to conclude that law courts and other formal institutions for the registration of private contracts were present wherever we have looked in medieval and early modern Western Europe, and that their sophistication, variety and potentially significant effects on economic development mean that they demand much closer study than they have received to date.