Theologians and Contract Law: The Moral Transformation of the Ius Commune (Ca. 1500-1650)

ISBN-10: 9004232842
ISBN-13: 9789004232846
Edition: 2012
Authors: Wim Decock
List price: $249.00
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Description: In this work, Wim Decock offers an account of the moral roots of modern contract law. He explains why theologians in the 16th and 17th centuries built a systematic contract law around the principles of freedom and fairness.

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Book details

List price: $249.00
Copyright year: 2012
Publisher: Brill Academic Pub
Binding: Cloth Text 
Size: 6.50" wide x 9.50" long x 1.75" tall
Weight: 2.794
Language: English

In this work, Wim Decock offers an account of the moral roots of modern contract law. He explains why theologians in the 16th and 17th centuries built a systematic contract law around the principles of freedom and fairness.

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

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