| |
| |
| Acknowledgments | |
| |
| |
| Prologue | |
| |
| |
| Notes on the Text and Its Modes of Reference | |
| |
| |
| |
| Method and Direction | |
| |
| |
| |
| Research hypothesis | |
| |
| |
| |
| Research design | |
| |
| |
| |
| Selection of sources | |
| |
| |
| |
| Theologians and Contract Law: Contextual Elements | |
| |
| |
| |
| Theologians and the ius commune | |
| |
| |
| |
| Law and theology? | |
| |
| |
| |
| The ius commune in Spain and its theological status | |
| |
| |
| |
| A syncretic legal culture | |
| |
| |
| |
| From manuals for confessors to systematic legal treatises | |
| |
| |
| |
| Symbiosis versus separation of law and morality | |
| |
| |
| |
| The Dominicans at Salamanca and the renewal of the Catholic tradition | |
| |
| |
| |
| The Jesuits and the reinforcement of the symbiosis | |
| |
| |
| |
| Moral jurisprudence and the court of conscience | |
| |
| |
| |
| A court for the soul and the truth | |
| |
| |
| |
| A minimalistic concept of morality | |
| |
| |
| |
| A plurality of legal sources | |
| |
| |
| |
| Enforcement mechanisms | |
| |
| |
| |
| Norms and force | |
| |
| |
| |
| Evangelical denunciation and the power of the keys | |
| |
| |
| |
| Secret compensation | |
| |
| |
| |
| Toward a General Law of Contract | |
| |
| |
| |
| Introduction | |
| |
| |
| |
| The long roads to consensualism | |
| |
| |
| |
| Haunted by the Romans | |
| |
| |
| |
| The civilian tradition | |
| |
| |
| |
| Classical convulsions | |
| |
| |
| |
| The refreshing spirit of canon law | |
| |
| |
| |
| Pacta quantumcumque nuda servanda | |
| |
| |
| |
| Causa | |
| |
| |
| |
| A new world: the victory of consensualism | |
| |
| |
| |
| Natural law | |
| |
| |
| |
| In utroque foro hodie ex pacto nudo habebimus ius agendi | |
| |
| |
| |
| The making of contractual obligation | |
| |
| |
| |
| Liberty and the will | |
| |
| |
| |
| Contrahentibus libertas restituta | |
| |
| |
| |
| Voluntas libertatem possidens | |
| |
| |
| |
| De contractibus in genere | |
| |
| |
| |
| All accepted promises are binding | |
| |
| |
| |
| First requirement: animus obligandi | |
| |
| |
| |
| Second requirement: promissio externa | |
| |
| |
| |
| Third requirement: promissio acceptata | |
| |
| |
| |
| The interpretation of contractual obligation | |
| |
| |
| |
| Fictitious and doubtful promises | |
| |
| |
| |
| Legally vs morally binding promises | |
| |
| |
| |
| Implied conditions and changed circumstances | |
| |
| |
| |
| Grotius | |
| |
| |
| |
| Conclusion | |
| |
| |
| |
| Natural Limitations on 'Freedom of Contract' | |
| |
| |
| |
| Introduction | |
| |
| |
| |
| Duress (metus) | |
| |
| |
| |
| Foundations | |
| |
| |
| |
| Romano-canon law | |
| |
| |
| |
| The Aristotelian-Thomistic tradition | |
| |
| |
| |
| Soto: the virtues of constancy and courage | |
| |
| |
| |
| Covarruvias at the confluence of scholasticism and humanism | |
| |
| |
| |
| Molina: duress makes contracts void ab initio | |
| |
| |
| |
| Tom�s S�nchez's doctrine of duress | |
| |
| |
| |
| Duress and the law of marriage | |
| |
| |
| |
| The constant man test of coercion | |
| |
| |
| |
| Promoting virtue, protecting the weak | |
| |
| |
| |
| The constant man, his relatives, and his friends | |
| |
| |
| |
| The constant man, his property, and his profits | |
| |
| |
| |
| Pressure and flattery | |
| |
| |
| |
| Reverential fear | |
| |
| |
| |
| Void vs voidable contracts | |
| |
| |
| |
| The Jesuit moral theologians and the casuistry of duress | |
| |
| |
| |
| Duress and general contract doctrine | |
| |
| |
| |
| Contract as a means of escaping a threat | |
| |
| |
| |
| The use and abuse of litigation rights | |
| |
| |
| |
| Minor fear | |
| |
| |
| |
| Void vs voidable contracts | |
| |
| |
| |
| A brief synthesis of the scholastic tradition on duress (Grotius) | |
| |
| |
| |
| Mistake (dolus/error) | |
| |
| |
| |
| Foundations | |
| |
| |
| |
| Romano-canon law | |
| |
| |
| |
| Aristotelian-Thomistic tradition | |
| |
| |
| |
| Nullity ipso facto and the bonae fidei / stricti iuris distinction | |
| |
| |
| |
| Is mistake a vice of the will? | |
| |
| |
| |
| A humanist scholastic canon lawyer on good faith vs strict law | |
| |
| |
| |
| Molina: mistake makes contracts void ab initio | |
| |
| |
| |
| S�nchez: delictual and criminal liability | |
| |
| |
| |
| A swansong to nullity ab initio | |
| |
| |
| |
| Voidability and the end of the bonae fidei/stricti iuris distinction | |
| |
| |
| |
| The format of Lessius' revolution | |
| |
| |
| |
| General application of voidability | |
| |
| |
| |
| General application of the tacit condition | |
| |
| |
| |
| Voidability without tacit condition | |
| |
| |
| |
| The impossible synthesis of the scholastic tradition on mistake (Grotius) | |
| |
| |
| |
| Conclusion | |
| |
| |
| |
| Formal Limitations on 'Freedom of Contract' | |
| |
| |
| |
| Introduction | |
| |
| |
| |
| The post-glossators and insolemn testaments | |
| |
| |
| |
| Natural equity | |
| |
| |
| |
| Substantial formalities | |
| |
| |
| |
| The decretalists and the consensualist turn | |
| |
| |
| |
| Contracts, elections, and last wills | |
| |
| |
| |
| Formalities against fraud and deceit | |
| |
| |
| |
| A general principle of consensualism | |
| |
| |
| |
| Teleological interpretations of positive law | |
| |
| |
| |
| The triumph of equity and conscience | |
| |
| |
| |
| Theologians for formalism I: the absolutistic version | |
| |
| |
| |
| Property, contracts, and restitution | |
| |
| |
| |
| Individual property and the State | |
| |
| |
| |
| The moral enforcement of State regulation | |
| |
| |
| |
| Against teleological interpretation | |
| |
| |
| |
| The politics of conscience | |
| |
| |
| |
| Theologians for formalism II: the diplomatic version | |
| |
| |
| |
| Property, exchange, and the common good | |
| |
| |
| |
| Technical nuances and academic courtesy | |
| |
| |
| |
| The absoluteness of positive law | |
| |
| |
| |
| The equation of legal and spiritual security | |
| |
| |
| |
| Contracts and last will vs marriage and election | |
| |
| |
| |
| Early modern canon law and the imperatives of the State | |
| |
| |
| |
| Contracts for third-party beneficiaries | |
| |
| |
| |
| Moral vs legal natural debt | |
| |
| |
| |
| Resisting, assisting or tolerating natural obligation | |
| |
| |
| |
| The triumph of Spanish statutory law | |
| |
| |
| |
| Defective testaments: naturally binding, but not in conscience | |
| |
| |
| |
| Theologians and formalism III: the critical approach | |
| |
| |
| |
| The disjunction of the debates on testaments and contracts | |
| |
| |
| |
| Moderate formalism in contracts and the resurgence of equity | |
| |
| |
| |
| Restoring the primacy of the will in testaments | |
| |
| |
| |
| Formalities, the political contract, and leges irritatoriae | |
| |
| |
| |
| Lessius against Covarruvias | |
| |
| |
| |
| Conclusion | |
| |
| |
| |
| Substantive Limitations on 'Freedom of Contract' | |
| |
| |
| |
| Introduction | |
| |
| |
| |
| Sex, theologians and contract law | |
| |
| |
| |
| Immoral object vs immoral motive | |
| |
| |
| |
| Roman canon law and the nullity of immoral contracts | |
| |
| |
| |
| Prostitution and the law of restitution | |
| |
| |
| |
| Illicit acquisition vs acquisition by virtue of an illicit cause | |
| |
| |
| |
| Leasing a right of use over your body | |
| |
| |
| |
| The Saint, the sinner, and the Digest | |
| |
| |
| |
| Sex for sale | |
| |
| |
| |
| The domina's (quasi-)contractual claim to a wage | |
| |
| |
| |
| Moralists, realists, theologians and canonists | |
| |
| |
| |
| The rigorist approach | |
| |
| |
| |
| Sex outside wedlock is mortal sin | |
| |
| |
| |
| Medina I: radical Augustinianism | |
| |
| |
| |
| Medina II: waiting for the liberal fornicator | |
| |
| |
| |
| The pragmatic approach | |
| |
| |
| |
| Soto on the moral limits to 'freedom of contract' | |
| |
| |
| |
| The market price for sex | |
| |
| |
| |
| Theological psychoanalysis | |
| |
| |
| |
| Thomistic canon law | |
| |
| |
| |
| The prostitute's right to remuneration | |
| |
| |
| |
| Unjust enrichment and secret prostitutes | |
| |
| |
| |
| A moralizing and experienced teacher | |
| |
| |
| |
| Envy in the canon law faculty | |
| |
| |
| |
| Moral worthlessness and lack of economic and juridical force | |
| |
| |
| |
| College freshmen and the plea against tolerating prostitution | |
| |
| |
| |
| The Jesuits and a general doctrine of immoral promises | |
| |
| |
| |
| The market price for immoral services | |
| |
| |
| |
| Immoral and impossible conditions | |
| |
| |
| |
| Immoral promises invalid as a matter of natural law | |
| |
| |
| |
| Immoral promises invalid as a matter of positive law | |
| |
| |
| |
| The politics of good morals (boni mores) | |
| |
| |
| |
| Morality and the final motivating cause | |
| |
| |
| |
| Sex as a luxury good and the stylus aulae | |
| |
| |
| |
| Grotius enjoying scholastic wisdom | |
| |
| |
| |
| Concluding observations on sex and the early modern theologians | |
| |
| |
| |
| Classification and analysis of the opinions | |
| |
| |
| |
| Su�rez and the protection of 'freedom of contract' | |
| |
| |
| |
| Invalidity versus immorality and illegality | |
| |
| |
| |
| Contract law and unjust enrichment | |
| |
| |
| |
| Fairness in Exchange | |
| |
| |
| |
| Introduction | |
| |
| |
| |
| The point of gravity: just pricing | |
| |
| |
| |
| Justitia commutativa | |
| |
| |
| |
| Enriching contracts | |
| |
| |
| |
| Restitution | |
| |
| |
| |
| Justum pretium | |
| |
| |
| |
| Demystifying the just price | |
| |
| |
| |
| Utility and necessity | |
| |
| |
| |
| Laesio enormis | |
| |
| |
| |
| C. 4,44,2 and the ius commune | |
| |
| |
| |
| The Aristotelian-Thomistic tradition | |
| |
| |
| |
| Contractual fairness in early modern scholasticism I | |
| |
| |
| |
| A clash between legal and moral principles | |
| |
| |
| |
| Roman maxims vs Christian morals | |
| |
| |
| |
| Just pricing vs gift-making | |
| |
| |
| |
| A clash between secular and spiritual jurisdictions | |
| |
| |
| |
| Enforcing contractual equilibrium | |
| |
| |
| |
| Competing for normative power | |
| |
| |
| |
| Lesion for dummies: the systematic approach | |
| |
| |
| |
| The external court | |
| |
| |
| |
| The renunciability of C. 4,44,2 | |
| |
| |
| |
| Gifts are not presumed | |
| |
| |
| |
| The internal court | |
| |
| |
| |
| Reason of sin vs reason of state | |
| |
| |
| |
| Unjust enrichment | |
| |
| |
| |
| Gifts are not presumed | |
| |
| |
| |
| Lesion for the advanced: the critical approach | |
| |
| |
| |
| Socio-political foundations | |
| |
| |
| |
| Individual property and rights | |
| |
| |
| |
| The do-no-harm principle | |
| |
| |
| |
| A humanist critique | |
| |
| |
| |
| Novum ius | |
| |
| |
| |
| The myth of dolus re ipsa | |
| |
| |
| |
| Circumscribing invicem se circumvenire | |
| |
| |
| |
| Philology meets equity | |
| |
| |
| |
| The non-renunciability of C. 4,44,2 | |
| |
| |
| |
| A humanist jurist more Catholic than the theologians? | |
| |
| |
| |
| Contractual fairness in early modern scholasticism II | |
| |
| |
| |
| Theory: the moral menace of Roman law | |
| |
| |
| |
| Practice: playing the market game | |
| |
| |
| |
| Grotius and the legacy of fairness in exchange | |
| |
| |
| |
| Conclusion | |
| |
| |
| |
| Theologians and Contract Law: Common Themes | |
| |
| |
| |
| Between freedom and justice | |
| |
| |
| |
| Between Church and State | |
| |
| |
| |
| Between medieval and modern | |
| |
| |
| Bibliography | |
| |
| |
| Index of Names | |
| |
| |
| Index of Terms | |