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