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Abstract:
Clauses that provided fixed monetary penalties first appeared in English contracts and conveyances in the first decade of the thirteenth century. Rather quickly thereafter penalty clauses came to be used in a wide variety of contracts and conveyances. They were used in (1) agreements over tithes, (2) settlement of disputes, (3) arbitration agreements, (4) agreements to transfer or not to transfer land, (5) marriage property agreements, (6) warranties of title to land, (7) leases, (8) agreements to pay rents and annuities, loans, and in a variety of other transactions. The penalty clause was just another clause in the agreement. At about the middle of the thirteenth century other methods of inserting a penalty clause into an agreement began to be used. A penalty clause could be made part of a recognizance on the plea rolls, the Exchequer rolls, or the Chancery rolls. The recognizance itself could be a penalty to enforce a side agreement. A money bond could serve as a penalty rendered void if the terms of a separate, conditional acquittance were met. A bond or a statute merchant could be given to a third party under an agreement to give the bond or statute merchant to the promisee if the promisor failed to carry out his agreement. By 1348 the penal bond with conditional defeasance endorsed on the back of the bond had been invented.

English Common Law, Contracts, Penalities, Legal History

Abstract:
In "Philoctetes," Sophocles portrays the political conflict that divided Athens at the time of the play. Philoctetes, representing the traditional aristocratic values, must be rejuvenated and reintegrated into the new, commercial Athens, represented by Odysseus, while the new Athenian polity must be transformed in order to accommodate Philoctetes. Neoptolemus has the task of bringing about the necessary reconciliation, forcing him to search for a concept of justice that can incorporate the two factions. His failure makes necessary the appearance of Heracles, whose divinity succeeds where humans failed. The play thus brings into question the ability of a legal system, based on implicit conceptions of justice, to generate and sustain the social reconciliations necessary to community.

Jurisprudence, Justice

Abstract:
The development of the penal bond with endorsed conditional defeasance presents a problem because the earliest monetary penalties in English contracts took the form of straight-forward penalty clauses. It is hard to see how the convoluted penal bond developed from such penalty clauses. This article traces the development of the penal bond from debt recognizances defeasible by the performance of conditions stated in a separate document. The logic of the defeasible recognizance was carried over to other arrangements including the penal bond with endorsed conditional defeasance.

Defeasance, Penal Bond