ON THE ENFORCEABILITY OF CONTRACTS:

EQUITY, JUSTICE AND LAW IN THE IUS COMMUNE

Mihai Safta1

Phd. Student at the University of Babeș-Bolyai, Cluj-Napoca, Romania.

1 Phd. Student at the University of Babeș-Bolyai, Cluj-Napoca, Romania. (e-mail Mihaisaftas.259@gmail.com)

Research financed by the project „MINERVA – Cooperare pentru cariera de elită în cercetarea doctorală şi post-doctorală”, cod contract: POSDRU/159/1.5/S/137832, proiect cofinanţat din Fondul Social European prin Programul Operaţional Sectorial Dezvoltarea Resurselor Umane 2007-2013.

ON THE ENFORCEABILITY OF CONTRACTS:

EQUITY, JUSTICE AND LAW IN THE IUS COMMUNE

Abstract: In this brief study of the medieval jurisprudence, customary law and contracts during the

thirteen century I have presented some of the basic ideas of Bartolus, Baldus, Hostiensis, and exposed

the two different opinions that were formed in the canonistic literature on the enforceability of

contracts: Johannes Teutonicus and Innocent IV. During this “rebirth” of law in the thirteen century,

roman and canon law witness the rise of the ius commune and its subsequent impact upon equity and

justice. The influence of Roman law upon the canon law is well-known, however starting with

Bartolus and Baldus, from the XIV century a new ius commune emerges based on the influence of the

doctrine and jurisprudence of contemporary institutions and enhanced by the medieval mutations.

Keywords: customary law, ius commune, medieval jurisprudence, contracts, Roman law.

Introduction:

Under the influence of Romano-canonical public and private law the State, in its

modern terminology first began to emerge as a juridical concept. For the High Middle Ages

political power and institutions have suffered considerable mutations and were now legally

definable. The nature of political authority and its origin within the regnum and ecclesia has

been defined by professional lawyers a new branch of scientific jurisprudence. Ecclesiastical

courts were now competent to treat practically all of the cases which appear before civil

tribunals, as well as some cases (like heresy) which have no official place in the modern

codes of civil and criminal law. The mixture of the two, ius commune and ius divinum was

bound to happen, especially after the massive work of Gratian in the previous century. In

consequence in the XII century the situation of the canonist is presented thus: At all times

theology and Roman law were surely instructive for the canonist, especially when he was

confronted by a theoretical problem or a question of private law. But at any moment the

professional canonist might have to deal with matters of sacramental doctrine, liturgical

practice, procedural law in the courtroom, administrative law for the carious offices in the

Church, Contractual law, usury and business ethics, marriage, and various other legal or

moral problems in the daily life of ordinary Christians. Or he might be called upon to discuss

the nature of temporal power, especially its relation to the Church.2

The influence of Roman law upon the canon law is well-known. However starting

with Bartolus and Baldus, from the XIV century a new ius commune emerges based on the

influence of the doctrine and jurisprudence of contemporary institutions and enhanced by the

medieval mutations. Not only the feudal ius and the statuary and positive law have

maintained independency from the roman Rota. However we must consider the reciprocity of

this event, meaning that not only Roman law has infiltrated itself into the cannon law, but

also the influence and mutation suffered by the Roman law enriched by the institutional

jurisprudence. In the same manner that cannon law repudiates civil law that are in direct

contradiction with its norms, so does the ius commune: omnes pragmaticas sanctiones quae

contra canones ecclesiasticos elicitatae sunt, succumbit ergo lex canoni, ubi est ei contraria.3

This means that if the canon is doubtful and a clear rule is to be found in the Roman law, then

it shall overrule the other and vice-versa.4 Therefore the Roman law is to be held as a

supplement to canon law and to be used whenever its positive legislation isn‟t in direct

contradiction with the norms of the norma recta vivendi and it does not “dédaigner de suivre

et de reprendre le droit canonique”5.

1 Equity, justice and law.

The author of the Quaestiones de iuris subtilitatibus represents Justice in a silver

temple, surrounded by her six daughters and holding Equity in her arms, and of course

Reason dominates the scene. Two centuries later, Baldus at the end of his introduction to the

Commentaries on representative decretals (Commentarium in libros decretalium) represents

Justice as a protected tower, by three walls, equity being just another element alongside

temperance. The point of these two allegories is the role that justices and equity undergo in

two centuries, their conception and their consequences: subjective law. Although Gratian

admits the existence of personal laws, his and the others decretalists focus on the general

matter of societas, of the Church, the Mystic Body of Christ.6 The utrumque ius, regalements

both the spiritual matters and the temporal ones, cependant, les emprunts faits par chacun de

ces droits l`un a l`autre ne se bornent pas à des rapports de bon voisinage assurant une

certaine réciprocité, notamment en ce qui touché le domaine temporel7. The main problem of

the correlation of these two codes of law is in their very core character of equity, specific to

both doctrines.

The law is nothing but the emanation of the will of the legislator. Monarchy was not

however merely a name or a convenient governmental nomenclature, but was conceived as

the sum-total of all governmental power in the public field. And this governmental power

could not- once more on the basis of the Roman law model- be understood in an sense other

than the legal one, so that its exercise was nothing but either the creation of new law or the

2 Robert L. Benson, The bishop Elect, A Study in Medieval Ecclesiastical Office, (Princeton, New Jersey:

Princeton University Press, 1998). p.16. 3 Ibid. p.184.

4 Ibid.

5 “…Si leges non dedignatur sacrus canones imitari, multo minus iudices et ministri debent canonum statute

contemnere in talibus casibus dubiis non decisis, et per hoc Cynum, Bartolum et alios legistas qui opinionem glossae sequuntur et non decisionem canonicam, sed quadoque determinant quod illa servetur in suo foro, non puto recte dicere…” Ibid. pp. 184-185. 6 Gabriel Le Bras, Histoire du Droit et des Institutions de l`Eglise en Occident (Paris: Sirey, 1965), VII. pp. 360-61

7 Ibid. p. 185.

application of already existing law. Iurisdictio was the hallmark of gubernation; he who dicit

ius also gubernat. The gubernator was he who authoritatively laid down what the law in a

special case was to be.8 These words attributed to Hostiensis start a new stage of development

in the doctrine of equity. Also the distinction between distributive justice and commutative

justice facilitated the application of canon law and the distinction of the classical public and

private law.9

Tout home doit tender à la perfection10

, as Hostiensis has called it in his “Summa

aurea”, the tertium genus, representing the three stages of life, those of aspirants to

perfection. He continues saying that all three orders (laics, clerks and religious) compose a

trinity. We might also mention the discourse about regulars, those who submit themselves to

a rule, opposite to those who live in the world les seculiers11

. Through arms, one could rise to

empire, and by the clergy it has often happened and can happen that the son of a poor man

becomes a great prelate, and is rich and honored as such, and becomes the father and lord of

him who was lord of him and his; and he rules and governs everyone, and he can even

become pope, and be father and lord of all Christianity12

. This course of action started

numerous debates and disputes in the knight-bishop biome. It was an age when it was

profitable to make free men, and thus the clerks relegated to second place their past doctrines

of service and instead looked for texts to prove the glory and usefulness of liberty. Some of

these were to be found in Roman law, where the basic notion was that men were naturally

equal and free. As Ulpian had long ago expressed it that in civil law, slaves are considered as

nothing, but not so in natural law, because in natural law, all men are equal, a sentiment

echoed by all the jurists and publicists of our period. Men of the time were confident that they

could restore man to his pristine liberty.

A prologue to emancipation in Castelsarrasin in 1268 reads: “In nature all men are

free, but the jus gentium made some men slaves. And because a thing returns easily to its

nature, learn that we, moved by piety...freely manumit our serf.” In this secular image, men

became Roman citizens when freed. Rolandino Passaggeri describes how a master frees his

dependants, remitting to them “all right of patronage, restoring to them their ancient

birthright and freedom in law, and calling them Roman citizens, and finally restoring them to

the primeval law according to which all men were born free, nor had manumission been

introduced at that time because servitude was unknown”.13

He, who granted liberty, was seen as restoring natural and right order, therefore he

should not be unduly praised. Henry of Bracton and the anonymous author of Fleta, informs

us that the ius gentium, or civil law, had not destroyed man`s natural freedom; it had only

obscured it. Buoncopagno of Signa wrote: „No one is said to confer liberty but rather to cast

off a certain veil of servitude by which freedom is said to be cloaked”.14

The martial order

enjoyed certain privileges. Even in Italian towns litigation between knights or knightly

families was settled by courts of their peers. In return for the expense of maintaining harness

and horses they were exempted from certain taxes. In Arles in 1205, knights paid the tithe on

their property, while others paid both tithe and tallage. In Pistoia during the early 1200‟s

knights paid the usual personal and property taxes in town, but their holdings in the contado

8 Walter Ullmann, The Papacy and Political Ideas in the Middle Ages (London: Variorum Reprints, 1976). p.358.

9 Gabriel Le Bras, Histoire du Droit et des Institutions de l`Eglise en Occident (Paris: Sirey, 1965), VII.p. 364.

10 Ibid. p. 11.

11 Ibid. p. 12.

12 Joseph Balon, Ius Medii Aevi (Namur: Les Anc. ets Godenne, 1959). p. 233.

13 Joseph Balon, Ius Medii Aevi (Namur: Les Anc. ets Godenne, 1959).p.234.

14 Ibid. p.234.

were exempt from the hearth tax. Privileged in an economic sense but also impeded. They not

only owed an expensive and sometimes dangerous service, but, in a manner similar to a

farmer under manorial law, they were seldom allowed to alienate property, represented

usually by their lands or other income-bearing goods held as a salary for the service.15

By the early thirteen century, therefore, clauses forbidding the alienation of property,

rents and sometimes other types of income to knights or the Church began to appear in the

private leases and sales. Although this restriction could usually be obviated by paying special

fees to landlords, urban governments or princes, it could also be established in the same way.

The growth of a distinction between noble and non-noble land was therefore a mark of the

thirteenth-century social life, and an early expression of the social rigidities that were to be

characteristic of the late medieval period.16

As we have seen, the nobles of the past had justified their freedom by their lineage.

The knight‟s freedom was now based on his office, his function as a soldier. The most

significant militias were the professors, of law and letters, and the judges and lawyers, the

literatoria militantes. Alphonso X of Castile had it incorporated into his Siete partidas

„ricoschomes, caballeros, maestros, cibdadanos, menestrales e laboradores”, adding that the

knowledge of law is another manner of knighthood. The sense of a profession, or militia, was

not new among soldiers. Indeed, it derived from Roman law. The clergy had also always

possessed it and based their authority upon it. As society matured, other militias began to

appear. Of these the most significant were those of the professors, especially of law but also

of letters, and the judges and lawyers, those whom Placentinus (d.1192), a jurist who taught

at Bologna and Montpellier, called “a militia of unarmed soldiers, that is, those militating in

letters (literatoria militantes)“. This observation echoes the introduction to both the Code

and the Institutes, in which it is said that imperial majesty was not only decorated by arms

but also armed by laws, in order that the emperor might be victorious not only over Rome`s

enemies abroad, but also over injustice and crime at home. Others than Italians had heard of

this noble ideal and it was enshrined in the great texts of English law, those of Glanville and

Bracton, and in Fleta. Alphonso X of Castile had it incorporated into his Siete partidas,

which also went on to divide society‟s orders into `ricoshomes, caballeros, maetros,

cibdadanos, menestrales e laboradores`, adding that `knowledge of law is another manner of

knighthood`.17

The late thirteenth-century saw a recrudescence of literature defending hereditary

nobility. The most famous spokesman for this view was Raymond Lull, whose Order of

Chivalry of 1274-75 was widely read throughout the later Middle Ages. Not only did he

repeat the old arguments, but he also adopted themes seen only in poetry or popular

literature before. To Lull a knight who has children by a plebeian wife honors neither

gentility nor knighthood, and -far worse!- a knight`s wife who bears a child by a commoner

destroys `the antiquity of chivalry and the noble confraternity of noble lineage`. Indeed, no

one has sufficient power to knight a man of common lineage. Even Lull, however, had to bow

before virtue and thereby contradict himself, although grudgingly. Because man is rational,

transcending the beasts, `the order of chivalry therefore consents that by many noble habits,

many noble deeds, and ennobling by the prince, there can be in chivalry an occasional man

of new, honorable and gentle lineage`. Besides, Lull had to face reality. Although he believed

15

Ibid. p.256-57. 16

Ibid. p.257. 17

Joseph Balon, Ius Medii Aevi (Namur: Les Anc. ets Godenne, 1959). p. 263.

that ideally judges should be chosen only from chivalry, he required them to be trained in law

as well as war.18

This recrudescence of literature defending hereditary nobility began to appear in the

thirteenth century, as a result of the increasing literacy among nobles (beyond poetry and

romance, i.e. the chanson de geste), and now sought to express itself in semi philosophical

discourses like those of Raymond de Lull, developing ideas that had existed long before.

Furthermore, these ideas reflected the strong family feeling of the medieval nobility, a quality

that distinguished them from both the clergy and the jurists. The clergy was an order of

celibates, and the jurists derived their professional sense from their ecclesiastical

predecessors, a fact illustrated by their habit of calling untrained judges and jurymen

`laymen` or, as the jurist Azo said in his commentary on the Code, `laymen and the illiterate`.

The careers of clerks and jurists might be aided by their family connections, but, in theory at

least, their posts and salaries were not hereditary. It is true that, like the priesthood of the

clerk or the doctorate of the jurist, knighthood was something assumed or won by an

individual and not by a family, but the tradition of hereditary offices and remuneration that

had grown up since late Roman times enabled the knights, once they were free, to emulate in

this respect the nobles and great officers of the early Middle Ages. The result was that, while

individuals of no lineage could always be knighted, families of freemen that had produced

knights and that had hereditary possession of the remuneration given knights could not be

deprived of their right to lay claim to this office. In short, once freed, knightly families

adopted the lineage traditions of the older nobility.19

The change from feudal service to general militia service in Europe‟s principle states

paralleled the evolution in Italy‟s urban republics. The history of knighthood was very

different, because of the lack of republican spirit outside the peninsula. Western princes

sought the monopoly of knighting, at first in order to control the militia and then in order to

reward faithful servants. Although Roman law accorded them this right, in practice any

knight could dub the son of a knight. Where the princes moved in was the ennobling of

commoners through knighthood. But even in the thirteenth century it was difficult to establish

this as a royal monopoly in a large nation like France, with its semi-independent duchies and

counties such as Brittany and Flanders, not to speak of England‟s Guienne and Gascony. In

1298 royal authority was obliged to confess that, from the time immemorial, in Provence and

the seneschals of Beaucaire ‟bourgeois were accustomed to assume the knight‟s belt from

nobles, barons and even archbishops without the authority and license of the prince‟. Bit by

bit, however‚ the rights of the prince began to prevail. From the 1270‟s the French kings

developed a lucrative business of selling grants of nobility or rewarding service with them20

.

The balance of power between a prince and his nobles, between the state and its

privileged citizens was the main focus point of canonists and jurists starting from the early

12th century; nobility should be won by each man through his service. In the prince‟s eyes,

nobility derived from virtue, and virtue from service to himself. And in his eyes nobility

should ideally be non-hereditary, to be won by each man through his service. The social

leveling and universal service owed to prince and country that this implies were already

understood, as may be seen when Rudolph of Habsburg in 1276 greeted all of his subjects,

from the peasants to the greatest nobles , as „‟my ministers‟. So resistant was the concept of

lineage among the martial aristocracy, however, and so useful an impediment to the

18

Ibid. p. 269. 19

Joseph Balon, Ius Medii Aevi (Namur: Les Anc. ets Godenne, 1959). pp. 269-70. 20

Ibid. p. 281.

totalitarian rationalization of society was the irrational principle that noble blood contained

the essence of freedom, that the state could not level all its citizens into a common servitude

at this time, nor was it to do so until both princes and nobles had bowed off the stage of

history.21

2 On the enforceability of contracts22

During the thirteenth century, two different opinions were formed in the canonistic

literature on the enforceability of contracts. Johannes Teutonicus defended the position that

all promises and contracts were actionable in the ecclesiastical courts. The excepted Crime,

found in Roman law, survived in Romanized Germanic laws from the twelfth centuries, but it

received new emphasis first in the Carolingian period and then in the debates concerning the

moral reform and criminal behavior of the clergy in the late eleventh and twelfth centuries. It

served various purposes outside of clerical reform and discipline, it helped to legitimate the

crusades and other kind of violence or lay violence. It helped also in criminal justice, to

distinguish between various levels and rights of justice; to reserve certain instances of

criminal jurisdiction to lords, kings , and independent city-republics; and to offer remedy in

case of a perceived grave public danger.23

Pope Innocent IV however did not accept the

enforceability of all contracts, but referred to the disciplinary measures of the Church, up to

interdict and excommunication. The vast majority of thirteenth, fourteenth and fifteenth

century‟s canonists flocked to the standard of Teutonicus, though some writers like cardinal

Zabarella or Imola adhered to Innocent.

Another form of resistance theory rested on the idea of contract. The argument used by

Manegold of Lautenbach in his Liber ad Gebehardum was one that reappeared frequently in

later centuries: the king is hired or contracted by the people to do a job. The elective

principle was an aspect of the making of a king and oaths were taken at royal coronations. If

the king chooses to act the tyrant, he can no longer claim fidelity because he has broken faith

and the compact. Hence the people should be free of his lordship. Manegold also used the

argument that the tyrant lacks the essential qualities of a king who is meant to excel all men

in wisdom, justice and piety. Loss of honor by corruption justifies loss of the royal title.

Aquinas is one of many who appealed to the notion of contract. In de regimine principum, he

held that public authority though not private individuals. May remove tyrant who breacks the

contract with the people, just as it may establish the king. Giles of Rome, too, although he

favored absolute and hereditary monarchy, nonetheless maintained in De renuntiatione

papae, that the ruler must be established by the consent of men and by that same consent he

may be deposed. Contract theory was, however, two-edged. Richard Hooker shrewdly

observed that the community may require the consent of the ruler before withdrawing from

his dominion. A further ground for the removal or correction of a ruler lay in the notion that

the community possesses sovereignty. Marsilius‟ doctrine of popular sovereignty allows the

community, or the representatives whom it appoints, to correct or depose the ruler because

Marsilius transfers the function of making law from the ruler to the community. The ruler

(pars principans) is simply the executive part of the community which is the legislator; hence

the pars principans is accountable in law. Jaques Almain hardened the argument when he

21

Ibid. p. 285. 22

The cambridge History of Later Medieval Philosophy ([n.p]: Press Syndicate of the University of Cambridge, 1982). pp. 769-70. 23

Manlio Bellomo and Orazio Condorelli, 'Monumenta Iuris Canonici', in Proceedings of the Eleventh International Congress of Medieval Law, ed. by Manlio Bellomo and Orazio Condorelli (Catania: Biblioteca Apostolica Vaticana, 2006), XII, 804. pp. 192-93.

wrote that the people cannot abdicate; under natural law any person who menaces the

community may be resisted. The scholastic in general expressed firm support for the

possibility of resistance based on the principles of justice and of contract.24

The glossators and the commentators of Roman law did a lot to break down the

formalism of Roman contract law. Bartolus and most of all Baldus de Ubaldis tried to narrow

the gap between the canon and Roman law of contract. The commentators distinguished

between pacta vestita and pacta nuda. The contracts under the last category were not

enforceable and were considered to constitute at the most a natural obligation. Baldus

however introduced the idea that a cause sufficed as a vestimentum. Though thereby the

practical implication of canon and Roman law doctrine could not differ much any longer, the

principle of consensualism was not accepted into Roman law by the commentators.

The difference between canon law and Roman law concerned thus foremost the

original point of departure of the system of contract law, but the gap has been almost closed

by the end of the Middle-Ages. Nevertheless, the theoretical difference would continue to be

recognized and even stressed by early modern doctrine.25

According to Saint Thomas

Aquinas (1225-1274) breaking a mutual contract did not only constitute a sin against the

precept of truthfulness or honestas, but also against the virtue of justice or more specifically,

fidelitas. The binding force of mere promises, and by consequence reciprocal promises or

conventions, was asserted by Aquinas and his neo-scholastic followers.

3 Bartolus on customary law.

In general, a valid custom, in both constitution and abrogation of laws, produced the

same effects as legislative acts: “Tacitus et expressus consensus aequiparantur et sunt paris

potentiae… generalis consuetudo generalem tollit leem.” (see also his proemium: Sicut lex

sumit vigorem ex expresso consensus populi, ita consuetudo ex tacito, et est tantae

autoritatis, quod legem tollit. )

This parity of Statute and Customary Law entailed:

1) That lunatics and persons under twenty-five years of age were bound by customs

which had obtained legal authority, although their consent did not count: “Lex scripta

eos ligat…ergo consuetudo, propter paritatem causae potentiae et effectus”

2) The principles concerning the territorial scope of Customary Law were identical with

those laid down in the realm of Statute Law (“collision statutorum”). As far as the

formality of a juristic act was concerned, Customary Law, referring to this formality

(“respect sollennitatis”), had no effects outside the territory in which it was valid –

obviously an application of the principle locus regit actum. In a case where

Customary Law was established “respect rei” it had validity outside the territory of its

origin as well- obviously and application of the principle locus rei sitae. (au test in

rem, id est respect rei, utputa prohibit rem alienare, et tunc etiam si contractus fiar

extra territorium, talis alienation non valet.) Customs concerning the person himself

–e.g. the ability to conclude a contract – were valid even if the person was staying

24

The cambridge History of Later Medieval Philosophy ([n.p]: Press Syndicate of the University of Cambridge, 1982). pp. 769-70. 25

Manlio Bellomo and Orazio Condorelli, 'Monumenta Iuris Canonici', in Proceedings of the Eleventh International Congress of Medieval Law, ed. by Manlio Bellomo and Orazio Condorelli (Catania: Biblioteca Apostolica Vaticana, 2006), XII, 804. Pp. 454-55.

outside his native territory. These rules correspond to the rules relating to “statuta

realia” and “statuta personalia”. The modern conflict of laws is generally considered

to have begun in Northern Italy during the late Middle Ages and in particular at

trading cities such as Genoa, Pisa and Venice. The need to adjudicate issues

involving commercial transactions between traders belonging to different cities led to

the development of the theory of statuta, whereby certain city laws would be

considered as statuta personalia "following" the person whereby it may act, and other

city laws would be considered as statuta realia, resulting in application of the law of

the city where, e.g., the res would be located (cf. lex rei sitae). 26

Where a conflict occurred between the customs in foro rei and those in foro judicii,

Bartolus availed himself of the distinction between substantive and adjective law. In the

sphere of substantive law those customs had to be determinative which were valid in the

district where the contract was concluded; in the realm of adjective law those customs which

had validity in the district in which the Court was situated. Quaero quid, si alia consuetudo in

foro rei, alia in foro rei; quae debet servari? Distingue: aut spectat ad litis ordinationem, et

servatur illa, quae est in foro judicii, aut ad litis decisionem, et tunc illa , quae est in foro

contractus vel in lolo contractus.27

.

It remains now to consider how rights based upon Customary Law were realized.

Bartolus stated concisely: Dic quod consuetudo quandoque tribuit jus agendi, quadoque jus

excipiendi. If jus agendi had been produced by a custom, there arose the question which actio

had to be taken? The answer depended on whether the custom brought about a right which

was still within an existing legal category- e.g. a new form of acquiring property or a new

form of contract- or whether the custom created a right which did not come under any of the

known legal categories. In the former case the action had to follow the category under which

the right could be classified –in the above mentioned examples: actio ex contractu, rei

vindicatio; in the latter case the action was condictio ex consuetudine. - The plaintiff had the

duty to refer to consuetudo contra legem in his plaint, quia intentio adversarii fundata est de

jure communi… et adversaries non posset esse instructus, an debeat cedere vel contendere.

When “jus excipiendi” had been produced by a custom one had to distinguish between and

exception by which the right of action was denied “ipso jure”, in which case the defendant

did not need to refer to the custom, and an exception which was to destroy the claim of the

plaintiff; this latter exception had, of course, to be proposed.28

In 1313, during the stormy controversy between Emperor Henry VII and his erstwhile

vassal, Robert of Anjou the king of Naples, Pope Clement V issued his famous bull

Pastoralis cura. Henry VII had summoned Robert to appear before him in Tuscany to answer

charges that the king had treasonously violated his feudal obligations by resisting Henry‟s

attempts to be crowned in Rome and supporting rebels in Tuscany and Lombardy against his

imperial overlord. Claiming he could act summarily in such a notorious case, Henry declared

Robert Contumacious and condemned him „in absentia‟.

In Pastoralis cura, Clement V objected to Henry‟s summons and condemnation,

arguing that Robert`s right to defend himself was a fundamental right of natural law that the

Emperor could not ignore. The pope admitted that Robert held fiefs from Henry, but he

26

Manlio Bellomo and Orazio Condorelli, 'Monumenta Iuris Canonici', in Proceedings of the Eleventh International Congress of Medieval Law, ed. by Manlio Bellomo and Orazio Condorelli (Catania: Biblioteca Apostolica Vaticana, 2006), XII, 804. pp. 454-55. 27

Walter Ullmann, Jurisprudence in the Middle Ages (London: Variorum Reprints, 1980). p. 281. 28

Ibid. pp. 281-83.

argued that the king as a vassal of the papacy residing in his own kingdom beyond the

boundaries of the empire, Henry could in no way summon Robert outside imperial

jurisdiction, especially to a dangerous place where he might suffer violence.29

In the statue of Arnolfo di Cambio Carlo d`Angio is clearly represented as a judge,

and this secular judicial function distinguishes the statue. Monarchs as judges, after the

manner of Solomon, were not unknown to mediaeval iconography. On the transept of

Strasbourg cathedral, set between the twin portals, appeared a figure of Solomon grasping his

sword. Above Solomon was a half-length relief of the blessing Christ holding an orb, and the

supporting console showed the mother whose baby‟s life his wisdom had saved, all indicating

that there the cathedral parish was used for judicial purposes. Strasbourg is not unique. At

Leon, in the central porch of the west facade of the cathedral a monarch sits jauntily on a

lion-headed throne. Beneath him, on a coronate, appears the inscription Locus Appellationis.

The monarch is clearly Solomon, and it is within this tradition that Arnolfo‟s statue is surely

to be seen.30

The iconography of the seated Angevin is commonly derived from the now

mutilated figure of Frederick II on the Capua Gate.

The French juriste, Jacobus de Ravannis, comme juriste, Jacques de Révigny fut un

critique du droit coutumier en vigueur dans les provinces du nord de la France et un tenant

du droit romain, importé à l'époque de la prestigieuse Université de Bologne. Avec Pierre de

Belleperche, il fut l'un des principaux commentateurs français du Corpus juris civilis. Son

brillant enseignement apporta un renouveau méthodologique qui fut dans l'histoire du droit

médiéval le passage de relais entre les glossateurs de Bologne et les postglossateurs

d'Orléans. Il fut oublié aux époques suivantes, ses œuvres étant imprimées au XVIe siècle

sous les noms de Pierre de Belleperche et de Bartole31

, maintained that the “princeps” could

through his plenitude of power remove the subjects` property without cause, but that he

sinned in so doing. In other words, Jacobus recorded what he saw as the reality of power, but

he was not happy about it. Likewise, the Italian jurist Cynus de Pistoia, who was much

influenced by his studies in France and by the work of Jacobus de Ravannis and Petrus de

Bellapertica, said in his commentary that the emperor could remove an individual‟s property

„without any cause in the world‟ („sine aliqua causa de mundo‟) „de facto‟ but not „de iure‟

and would sin in so doing. Albericus de Rosciate, however in his commentary on Dig.Const.

Omnem, using concepts derived from theology and juristically elaborated by canonists from

Hostiensis onwards maintained that the emperor, by his ordained power („potestas ordinata‟),

could not remove or transfer property without just cause and still avoid sin, but that by virtue

of his absolute power „potestas absoluta‟ he could remove and transfer individuals` property

without just cause; no one, other that God, could judge whether the emperor had just cause in

any case. 32

“Habertu pro causa quelibet ratio motiva ipsius principis”33

as Baldus states:

thirdly, the doctors ask whether the emperor can issue prescripts contrary to the law of

peoples. The Gloss appears to maintain that he cannot, with the result that someone`s

property cannot without cause be taken away by the emperor`s prescript, although it certainly

can be with some kind of cause….; and whatever reason motivates the emperor himself is

29

Ibid. pp. 576-78. 30

Ibid. 31

http://fr.wikipedia.org/wiki/Jacques 16.5.2013, 2.52 pm. 32

Manlio Bellomo and Orazio Condorelli, 'Monumenta Iuris Canonici', in Proceedings of the Eleventh International Congress of Medieval Law, ed. by Manlio Bellomo and Orazio Condorelli (Catania: Biblioteca Apostolica Vaticana, 2006), XII, 804. pp.569-70. 33

Ibid. p. 597.

considered cause enough. It is otherwise with a statute of the people, because this should not

contain such motivation as its cause, but rather a cause which is credible and suitable,

otherwise it is not valid.34

“Even kings now assembled a group of individuals, special advisers, commonly

jurists, or at any event individuals educated in the law, to whom matters of justice could be

entrusted. They were quite separate from the king‟s closest councilors, who remained

responsible for on-going political and administrative affairs. This was yet another aspect of

the triumph of the ius commune, in that individual governments were made aware that the

prince governed through his consistorium.”35

For the jurists of the twelfth century, the trial had its origin in the Garden of Eden,

when God asked Adam the reason for his behavior; Adam objected that it was the woman,

created by God, who had made him fall into temptation. This biblical model served the jurists

by extolling the trial as an indispensable means for treating human conflicts in the rational

manner and for permitting the unfolding of civil life. The trial in Eden had, in fact, a

dialectical and not only a punitive nature. It was a confrontation, not a sentence. Adam, as the

jurist say, “objected”, which means that he presented some excuses, attempted a defense, and

implicitly imputed to God part of the guild. He had placed the woman at Adam‟s side. This

“dialectical” structure of the procedural confrontation was enriched with Roman law

material in the first works on procedure, which began to circulate between the twelfth and

thirteenth centuries. In these texts of practice, called ordines iudiciarii, one sought to

elaborate not only a sequence of procedural acts that the parties had to execute in the course

of the trial, but also a model of knowledge-which things and with which means they could be

known- and implicitly, a model of truth: what was the “truth” and how it could be reached. In

its theoretical form, in fact, the trial expresses the criteria of veracity that a society believes

useful and legitimate.”In the medieval culture knowledge of the fact has becomes

problematic with the beginning of the twelfth century, after the rediscovery of the Roman

law36

and the eruption of the Roman libri legales, understood as authoritative texts,

represents a profound breakthrough.

Iurisdictio and Iudicatio, both classical Roman law concepts must be distinguished as

follows: Iurisdictio (ius dicere) means within the sphere of the ordinary civil procedure the

authority to decide whether a plaintiff in an individual case should be permitted to pursue his

claim before a judge. Iudicatio (iudicare) means the authority to pronounce judgment.37

However iurisdictio and iudicatio were seldom combined in one, usually iurisdictio was

entrusted to a magistrate (particularly the praetor) and the iudicatio to a private person or

several private persons. Both magistrate and iudex are regarded as representatives of common

sense; they need not necessarily have a full knowledge of the law but are expected to act in

close contact with professional lawyers. The terminology iurisdictio- iudicatio is somewhat

artificial, since the natural sense of ius dicere comprehends any statement on law, including

judgment. In ancient times, however, the praetor was called iudex and acted as a judge;

iurisdictio was then the proper term to designate his function and the customary term was

preserved in later times in spite of the division of powers between magistrate and judge.

34

(Monumenta Iuris Canonici, 2001). p. 597. 35

Mario Ascheri, The Laws of Late Medieval Italy (1000-1500) (Boston: Leiden, 2013). p. 334. 36

It sets forth the need to elaborate interpretive canons of reality, and opposed to the early middle ages it is characterized by an overbearing factuality of the law, involving a primitivism of juridical forms very close to the reality of things, almost naturalistic. (Vallerani, 2012) p. 74. 37

Fritz Schulz, Classical Roman Law (Oxford: Clarendon Press, 1951). p. 13.

Thus classical civil procedure begins with proceedings before a magistrate

(proceedings in iure). If the magistrate declines to establish a iudicium (denegare iudicium),

the plaintiff`s case is dismissed. The plaintiff may apply to the Emperor, who will perhaps

instruct the magistrate to grant a iudicium; or he may wait for the end of the praetor`s year of

office and apply to the next praetor. If, on the other hand, the praetor grants an iudicium

(dare iudicium), the procedure in iure is closed. This stage is marked by the calling up to

witnesses (litis contestatio). The term litis contestatio is also used to designate the end of the

proceeding in iure and even this proceeding as a whole. At the close of the proceedings in

iure the second phase of the civil procedure begins, namely the iudicium or proceedings apud

iudicem. At this point eventually judgment pronounced, viz. either the plaintiff is dismissed

or the defendant condemned. In civil unlike criminal procedure it is not permissible to

pronounce non liquet. Appeal from judgment is not permitted.

The jurisdictional magistrate within the limits of the City of Rome is the praetor

urbanus if both parties are Roman citizens; if one or both are non-Roman the praetor inter

peregrinos or cives et peregrinos (abbreviated to praetor pregrinus). For certain actions the

aediles curules are competent. In the municipia, municipal magistrates have a limited

jurisdiction. In the provinces the governors are the jurisdictional magistrates, while in the

senatorial provinces the jurisdiction of the aediles is exercised by quaestores. As a rule

iudicatio is entrusted to a single private person chosen by both parties and authorized by the

magistrate. This judge is called iudex. Sometimes he is called arbiter. This is the ordinary

procedure. The change in nature and in certain cases of content is shown “in the difficulty

encountered by numerous jurists in tracing a clear-cut distinction between a “question of

fact” and a “question of law”, a classical pause for doctrinal reflections on the

epistemological basis of the law. The differences appear to be clear: the quaestio facti

concerns the ascertainment of the existence of a fact and comes very close to being a process

of proof of a judicial type, while the quaestio nominis and the quaestio iuris concerns the

definition in juridical terms of the law to be applied to the fact”38

.

The accusatory system is called “triadic” because it requires the presence of three

distinct subjects –actor, culprit, and judge- with a division of tasks rigidly regulated by an

ordo iudicii that assigns diverse roles to the aforementioned subjects. There are three distinct

logical-procedural moments, in order, the definition of the fact, its dialectical reconstruction

according to an argumentative logic, and finally it‟s verification in the witness seat according

to a probatory logic. The first, in the libellus at the beginning of the process, concerns the

selection of the action to be claimed; the second, in the positiones , contains the

reconstruction of the fact presented by the parties in the form of a dialogue; the third, in the

intentiones, collects articles that the parties want to demonstrate and from which the

questions to be asked of the witnesses are formulated.39

The fama of which Gandino speaks is in the first place a system of recognition of the

person as being human. Secondly, the formulation taken up in the Digest: “fama is a status of

unsullied dignty, confirmed by customs and laws”( fama est inlese dignitatis status, moribus

ac legibus comprobatus), where status dignitatis does not indicate some public honor, but the

dignity given to man from his nature in order to differentiate him from other living beings.

Fama then becomes a sign of integration and of belonging to a political and territorial

community: “he who governs himself with good customs acquires good fama and is

38

Fritz Schulz, Classical Roman Law (Oxford: Clarendon Press, 1951).. pp. 74-77. 39

Ibid. pp. 82-84.

recognized to be placable and beloved by his city” (qui bonis moribus se gubernat, bonam

famam acquirit et dignoscitur esse sue civitati placabilis et dilectus).

The person who conducts himself well in his community becomes dilectus civitati : an

interesting expression that alludes both to the good fama that the city recognizes in its subject

and to the help that, in case of need, it is disposed to offer him. And help means witness in his

favor, guarantors and guarantees of his behavior before judges, who , in general being

foreigners, do not have any other means of evaluating a person charged with a serious crime.

The inverse case, of persons marked by bad fama, confirms this: despised by the city, they

cannot expect any help from it. A model of an integrated society is configured that evaluates

the behavior of individuals, determines their fama and the merits accumulated with respect to

the collectivity, and acts accordingly.

In sum, one arrives at the formalization of a category of judicial marginals: persons

who are socially singled out by a condition of isolation and perhaps of contrast with the

established community-because they have committed “an injury against the customs of the

city”(iniuria contra mores civitatis) and find themselves isolated and cast out from the city,

“since he seeks the help of the city in vain, who commits a deed against it”(quia frusta iuris

civitatis implorand auxillium, qui contra illud commisit)- deprived of every procedural

guarantee and subjected to a presumption of guilt (semel malus semper praesumitur esse

malus) that by itself constitutes a semiplena proof to proceed to torture. The presumption is

more “probable” and therefore closer to the truth.40

The consillium reaffirms a great trend of Roman law, that no one can be forced to

present an accusation against his will. It is a theme repeatedly confronted in his Tractatus by

Alberto Gandino, who saw precisely in the forcing of the accusation the key to establishing a

new inquisitorial judicial system. In this case it was denied by the two Bolognese jurists and

perhaps not wrongfully. No commune, save for exceptions and limited strict rules over time,

conferred on judges the authority to “force” accusations: one could proceed even without and

accusation in the cases indicated by the statute, but the Roman rule to non compellere the

accuser remains, however, standing, as states the Bolognese statute itself that the jurist-

consultants cite after due consideration. In the second place, when the consilia are examined,

the discourse of the prevailing doctrine is not of great value; at that moment that which

dominates is precisely the consilium itself and the force with which it is recognized in the

judicial system.41

4 Conclusions:

My research concerning the enforceability of contracts focused on bringing arguments

in the favor of the assumption that indeed the Middle Ages were a law-centered period, and

that the idea of Imperial Roman public administration wholly absent in the medieval society

of the thirteenth and fourteenth centuries is partially true. The glossators and the

commentators of Roman law did allot to break down the formalism of Roman contract law.

Bartolus and most of all Baldus de Ubaldis tried to narrow the gap between the canon and

Roman law of contract. The “State” as a political entity did not yet exist; what existed, in

practice, was a number of self-sufficient municipalities, although in theory the bearer of all

plenitude of power was the emperor as the „dominus mundi‟. The difference between canon

law and Roman law concerned thus foremost the original point of departure of the system of

40

Massimo Vallerani, Medieval Public Justice, trans. by Sarah Rubin Blanshei (Washington: The Catholic University of America Press, 2012). pp. 110-12. 41

Ibid. p. 173.

contract law, but the gap has been almost closed by the end of the Middle-Ages.

Nevertheless, the theoretical difference would continue to be recognized and even stressed by

early modern doctrine.

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Gabriel Le Bras, Histoire du Droit et des Institutions de l`Eglise en Occident (Paris: Sirey,

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