Richard Thurnwald, “Vertrag” (1929)

Richard Thurnwald’s encyclopedia article examines contract through comparative legal ethnology. Its nine sections move from the social and intellectual conditions of contractual obligation through symbolic acts, binding words, writing, and consent, before considering inequalities between parties, customary obligations, loans, leases, liability, and pledges. The governing claim is methodological:

Die frühen juristischen Auffassungen und Formen sind unter dem Gesichtspunkt der Gesellschaftsordnung und der Geistesverfassung zu betrachten, aus der sie hervorgingen.

English translation: Early legal conceptions and forms must be considered from the standpoint of the social order and the mental disposition from which they arose.

Contractual forms depend on the organization of authority and on beliefs about what makes an undertaking binding. Where centralized adjudication is absent, retaliation and supernatural sanctions secure agreements; even established authorities continue to invoke divine judgment and oracles. Thurnwald proposes a developmental sequence from contracts constituted by acts, through prescribed verbal formulas, to agreements established by consent. Yet Roman legal categories provide comparisons, not straightforward equivalents: Rome’s strong state authority distinguishes it from many of the societies discussed.

Symbolic action initially establishes claims and obligations by making them publicly recognizable and supernaturally protected. Ewe boundary markers and Maasai ritual requests illustrate how acts that might appear merely expressive carry coercive force. Verbal formulas likewise define an unmistakable situation while binding participants through the feared efficacy of words. Thurnwald acknowledges that acts and speech overlap historically; his suggestion that secure horticultural livelihoods encouraged verbal elaboration remains conjectural. Writing subsequently preserves contractual detail without rigid formulas, while strengthened political authority makes enforcement less dependent on ritual form.

Equality is no less consequential than procedure. Outsider status, feud, and social rank can obstruct agreements or restrict reciprocal giving. This concern prepares the article’s central conceptual distinction:

Automatisch aus bestimmten Sitten entstehende Verbindlichkeiten wird man von eigentlichen „Verträgen“ mit besonderen Abmachungen unter Einzelpersonen unterscheiden müssen.

English translation: Obligations arising automatically from particular customs must be distinguished from actual “contracts” involving specific agreements between individuals.

Against Mauss and Davy, Thurnwald rejects treating potlatch obligations as the original form of contract. Potlatch and kula organize extensive networks of reciprocal performance, but neither represents an elementary social condition: both occur in societies already exhibiting marked tendencies toward stratification. Their explanatory basis is Vergeltung, reciprocal requital, rather than an independently established contractual origin. They are specialized configurations, not universally valid developmental stages. Wedding gifts, hospitality, and other customary duties further demonstrate that binding obligations need not originate in explicit agreements.

The later sections test these distinctions against economic practices. Kiziba lending links interest to successive trading ventures or periods and extends repayment responsibility to relatives. Beni Amer service agreements allocate risks between employers and workers, while caravan assistance illustrates customary reciprocity. Leasing especially exposes the difficulty of separating economic transactions from political subordination:

Eine Unterscheidung zwischen privatrechtlicher Pacht und öffentlichrechtlichem Lehen (s. d.) ist in den einzelnen Fällen oft schwer zu machen.

English translation: A distinction between a lease under private law and a fief under public law (see that entry) is often difficult to make in individual cases.

Among the Bakitara, cattle management connects royal authority, the Bahuma official nobility, and poorer herders of the same stratum. Thurnwald records both the Bahuma’s independence from district chiefs and the subsistence basis of herding households. His Batutsi and Ruanda examples sharpen the political argument: control of cattle sustains domination, and threatened withdrawal of leased animals produces dependence. Ewe land-use arrangements and Mongolian sharecropping broaden the comparison to differentiated rights over land, improvements, equipment, and harvests.

The final section follows enforcement from kin liability and sureties to seizure of property and persons. Public opinion can constrain creditors, and royal adjudication can regulate foreclosure; nevertheless, distraint can shade into kidnapping, enslavement, and extortion. The article’s enduring analytical interest lies in locating contract within authority, kinship, belief, and unequal access to resources. Its hierarchical evolutionary vocabulary and speculative developmental sequence also mark the limits of its framework: the ethnographic cases often disclose overlapping institutions more convincingly than a single progression toward consensual agreement.