The Evolution of Private Legal Texts

In England, the birthplace of the common law that is used throughout the English-speaking world, an early type of legal text was the will, as well as grants of land and other types of property. Throughout much of the Anglo-Saxon period, wills and grants of land were made orally, usually with witnesses present, and accompanied by some kind of ritual, such as the symbolic handing over of a clod of dirt to the purchaser or recipient. After England's conversion to Christianity, a class of literate clergymen emerged. Before long, clerics began to make written records of these wills and property transfers as memorials of the transaction, especially when the gift was made to a religious institution that had an interest in preserving evidence of the transaction in case of a future dispute.

These early texts are quite clearly evidentiary rather than performative or dispositive. As some historians have pointed out, they were "after-the-fact records of the binding event that already had taken place." In other words, the performance of the legal act did not consist of the writing or the signing or sealing of a piece of paper or document. The transaction was performed orally in front of witnesses. If a written document was made, it was merely evidence of that oral ceremony, not an operative or dispositive legal document in the modern sense. This is evident from the fact that for the most part, the scribes used verbs that were in the third person and the past tense, rather thanthe first person, present tense verbs that arecommonly used performatively, as the following introductory phrase illustrates:

HER is geswutelod an ðis gewrite hu Ælfheah ealdorman his cwidæ gecwæðan hæfð...

'Here in this document it is declared how the ealdorman Ælfheah has declared his will...' (Will of Ælfheah, Whitelock 1930:22-23)

In the late Anglo-Saxon period, however, there are indications of a new trend in which legal texts were no longer merely evidence of land transfers or wills. Over the centuries, it became the writing and signing of the document (or placing a seal on it) that constituted the legally operative or dispositive act. The legal transaction was now performed by means of the text.

The English Statute of Wills, enacted in 1540, required that transfers of real property by will should be evidenced by a writing. Later English statutes extended the requirement of writing to transfers of personal property upon death. As a result, written evidence of a will was now essential.

The development of English wills is a good illustration of how legal texts are introduced into a culture. In the beginning, such texts are almost always evidentiary, serving as nothing more than records of an oral transaction. Yet the text can also become authoritative, as have wills in the past few centuries. The same is true of another common legal text, the deed, which is used to convey real property. With wills and deeds, the transaction in question can only be performed by properly enacting written text.

Not all private legal transactions require authoritative written texts. Contracts are a good example. In fact, in the law of contracts we can see all three major stages in the progression from the exclusively oral to the authoritative written text. Even today, there is no requirement that a contract be in writing. A contract can be completely oral, just as in Anglo-Saxon England. If John promises Mary that he will mow her lawn tomorrow for a certain amount of money, and Mary agrees, they have made an enforceablecontract. It is also possible to make an oral contract that is memorialized by a written record that contains some or all of its terms. Suppose that Mary enters an electronics store and orally agrees to buy a computer, to be delivered in a week and installed in her office. The only writing might be a sales receipt that states "computer and installation-$1000." Like an oral Anglo-Saxon will whose terms are written down by a monk, this is an oral agreement accompanied by an evidentiary text. The transaction is not performed by writing out the sales receipt. Rather, it is accomplished orally; the receipt is simply evidence of the oral event. Stated somewhat differently, the contract in this case is the agreement the parties made, not the receipt. If there is a subsequent dispute about the agreement, what the parties said to each other will be crucial.

(Retrieved from Legal Language by P. Tiersma http://www.languageandlaw.org/)